Opinion
No. 30309-4-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 02-1-01544-9. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. James E Warme.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Alyssa Zach, Cowlitz County Prosecutors Office, 312 SW 1st Ave Rm 110, Kelso, WA 98626-1799.
Crystal Marie Horne appeals her drug-possession conviction, arguing that the trial court should have granted her motion to suppress the evidence. We affirm.
FACTS
In the course of a traffic stop, the driver fled, leaving his keys in the ignition of the still-moving car. Horne, the passenger, slid over to the driver's side to activate the brake and to stop the car from crashing into another vehicle and a nearby telephone pole. The officer ordered Horne out of the car and asked her for the name of the fleeing driver, but she gave false names.
When the officer reached into the vehicle to turn off the engine and to remove the key from the ignition, he noticed a black leather wallet dangling from the key. When he opened the wallet to look for the driver's identification, he noticed two clear baggies of methamphetamine in the wallet. The wallet contained Horne's identification. She admitted that the wallet, the car, and the keys belonged to her.
The State charged Horne with unlawful possession of a controlled substance, methamphetamine. RCW 69.50.401(d). The trial court denied Horne's motion to suppress. Horne waived her right to trial by jury and submitted her case to a bench trial on stipulated facts. The trial court convicted her as charged.
ANALYSIS I. Standard of Review
We review a suppression hearing record to determine if substantial evidence supports the challenged findings of fact. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) (independent evaluation of evidence improper). We accept unchallenged findings of fact as verities. Hill, 123 Wn.2d at 644. Here, the stipulated facts are unchallenged.
The trial court entered findings of fact and conclusions of law for the suppression hearing on January 15, 2004, after Horne had filed her opening brief on appeal but before the State filed its response brief. She did not file a reply brief or a supplemental brief and, thus, we conclude that she does not dispute the suppression hearing findings of fact (nor could she, because they are identical to many of the facts to which she stipulated for her bench trial).
We review conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999); State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996); State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995). Here, only the trial court's conclusions of law are in issue.
II. Search and Seizure
Horne argues that the search was not justified because (1) it preceded the officer's having probable cause to arrest her for giving a false name (i.e., obstructing) and, thus, was not a search incident to arrest; (2) the officer's need to identify the fleeing driver did not justify a warrantless search because the police did not first arrest the driver; (3) the officers were not conducting an inventory search; and (4) even if they had conducted an inventory search, it would have been unnecessary because the car belonged to her and she had remained with her vehicle.
The trial court ruled the warrantless search legal and denied Horne's motion to suppress because the driver had abandoned the car when he fled from the police. The facts support the trial court's conclusions of law.
Officer Fletcher testified that when the driver jumped out of the car, he (Fletcher) `observed [Horne] jump into the driver's seat and apply the brakes to stop the vehicle.' Report of Proceedings (RP) at 8. Nonetheless, Horne claimed neither below nor on appeal that she was in control of the vehicle at the time of her arrest. We acknowledge that, as a passenger charged with a possessory offense, Horne has automatic standing to challenge a search of her personal effects. See State v. Jones, 146 Wn.2d 328, 332-33, 45 P.3d 1062 (2002) (automatic standing applies when passenger is charged with possessory offense and has possession at time of search or seizure). Nonetheless, her challenge fails.
And even had she made such a claim, it would fail because she did not control the car when Fletcher initiated the stop, even though the car, keys and wallet were hers, and she had slid into the driver's seat by the time Fletcher ordered her from the vehicle.
Instead, we look to the reasonableness of the officer's actions. In fleeing the still-moving vehicle during the traffic stop, the driver abandoned any right to challenge the search and seizure of property that had been in his possession before he fled. At that point, Officer Fletcher reasonably believed that the wallet on the keychain attached to the key in the ignition belonged to the driver; Fletcher had no reason to believe it belonged to Horne.
See State v. Vrieling, 144 Wn.2d 489, 494, 28 P.3d 762 (2001) (officer may not search a passenger's personal effects if the officer knows they belong to the passenger and they are not in the driver's immediate control); State v. Hunnel, 139 Wn.2d 486, 987 P.2d 73 (1999) (officer could not search passenger's purse because it was not within the driver's control). Accord, State v. Jones, supra (search improper because purse was not in driver's immediate control).
Contrary to Horne's contentions, the law is clear that the officer did not need a warrant or probable cause to look inside the abandoned wallet under these circumstances:
Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered. The issue is not abandonment in the strict property right sense, but rather, `whether the defendant in leaving the property has relinquished her reasonable expectation of privacy so that the search and seizure is valid.' In the law of search and seizure, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment.
State v. Dugas, 109 Wn. App. 592, 595-96, 36 P.3d 577 (2001) (quoting United States v. Hoey, 983 F.2d 890, 892-93 (8th Cir. 1993) (citations omitted).
See also John P. Ludington, Annotation, Search and Seizure: What Constitutes Abandonment of Personal Property Within Rule That Search and Seizure of Abandoned Property Is Not Unreasonable — Modern Cases, 40 A.L.R. 4th 381 sec. 11 (1985) (discussing cases in which the defendants fled from their vehicles when pursued).
Needing neither a warrant nor probable cause, law enforcement officers may retrieve and search voluntarily abandoned property without implicating an individual's rights under the Fourth Amendment or under article I, section 7 of our state constitution. State v. Reynolds, 144 Wn.2d 282, 287-88, 27 P.3d 2002 (2001).
We hold, therefore, that (1) the trial court properly concluded that the wallet dangling from the key in the ignition, though actually belonging to Horne, was under the control of the driver, who relinquished any expectation of privacy in it when he fled; and (2) the officer's search of the wallet was proper. Upholding the trial court's denial of the suppression motion on this ground, we do not address Horne's other arguments.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, JJ., concur.