Opinion
No. 26134-4-III.
July 31, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 06-1-00758-4, Evan E. Sperline, J., entered April 30 and September 24, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Korsmo, J.
Remy D. Nguyen appeals his stipulated-facts bench trial conviction for possessing marijuana with intent to deliver, possessing over 40 grams of marijuana, and using drug paraphernalia. He contends the trial court erred in applying the mobile-automobile-exigent-circumstances exception when denying his evidence suppression motion. We disagree, and affirm.
FACTS
Mr. Nguyen was charged with possession of marijuana, possession with intent to deliver, and use of drug paraphernalia based on the following facts.
On November 17, 2006, Washington State Patrol Trooper Ryan Raymond stopped Mr. Nguyen's sports utility vehicle (SUV) for speeding. Upon contacting Mr. Nguyen, he noticed an "overwhelming" odor of marijuana. Report of Proceedings (RP) at 17. Trooper Raymond noticed Mr. Nguyen was abnormally nervous and his hands were shaking. Trooper Raymond eventually arrested Mr. Nguyen. The sole passenger, Mr. Nguyen's brother, apparently was free to leave after his initial detention and Mr. Nguyen's arrest.
Mr. Nguyen told Trooper Raymond he thought there was a "roach" under the driver's seat. RP at 20. Officer Raymond did not find a marijuana cigarette; instead, he found behind the back seat in the SUV's cargo area four bags of marijuana, weighing approximately 100 grams, a scale, and cigars which can be used as receptacles for marijuana. These items were located behind the back seat and a "very loose speaker box." RP at 22. Otherwise, the cargo area was open to the main compartment of the vehicle.
At Mr. Nguyen's requested evidence suppression hearing, the parties disputed whether the second-row SUV seat was split and could be folded in sections or solely folded in one section. Implicitly resolving the dispute in favor of Mr. Nguyen, the court found a person would have "to exit the vehicle" to access the back area. Clerk's Papers (CP) at 116 (Finding of Fact 2.21). And, the search was "outside the passenger compartment." CP at 116 (Finding of Fact 2.20). Accordingly, the court concluded the search was not justified under the passenger compartment exception.
However, the court reasoned the passenger was free to drive the vehicle away because he was "fit to drive and not under arrest." CP at 116 (Finding of Fact 2.3). The court concluded the vehicle was mobile and the search was justified under the automobile exception and denied suppression. Later, the court found Mr. Nguyen guilty as charged in a stipulated-facts bench trial. He appealed.
ANALYSIS
The issue is whether, considering the mobile-automobile-exigent-circumstances exception, the trial court erred in denying Mr. Nguyen's suppression motion for the evidence found behind the rear seat of Mr. Nguyen's SUV.
We review a CrR 3.6 suppression order by independently evaluating the evidence to determine whether substantial evidence supports the findings of fact and the findings of fact support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644-45, 870 P.2d 313 (1994). We review conclusions of law de novo. State v. Carneh, 153 Wn.2d 274, 281, 103 P.3d 743 (2004).
Absent an exception, a warrantless search is impermissible under article I, section 7 of the Washington Constitution. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). Washington has identified five qualifying exigent circumstances: (1) hot pursuit; (2) fleeing suspect; (3) danger to the arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983) (internal citations omitted). The State bears the burden of showing that an exception applies. State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001).
This court has held "the mere fact that a car is potentially mobile is not enough of an exigency to support a warrantless search." State v. Ozuna, 80 Wn. App. 684, 690, 911 P.2d 395 (1996) (citing State v. Patterson, 112 Wn.2d 731, 735, 774 P.2d 10 (1989)). Exigencies exist "when the defendant is still at large, has accomplices who could remove the evidence, or when there is an immediate need to pursue a promising investigation." Id. (citing Patterson, 112 Wn.2d at 736). In State v. Huff, 33 Wn. App. 304, 310, 654 P.2d 1211 (1982), this court noted, "a warrantless search of an automobile is constitutionally permissible if there is probable cause to search the automobile which is stopped, the car is movable, the occupants are alerted, and contents of the car may never be found again if a warrant must be obtained first."
Here, exigent circumstances justified the warrantless search. Substantial evidence shows Mr. Nguyen's passenger was merely detained in one of the trooper's patrol cars while officers investigated Mr. Nguyen's incriminating statements and the suspicious circumstances. The passenger was "fit to drive" and could have driven the car away, possibly resulting in the destruction or loss of evidence. CP at 116. Based on the strong smell of marijuana and Mr. Nguyen's confession there was a marijuana cigarette in the automobile, there was "an immediate need to pursue a promising investigation." Ozuna, 80 Wn. App. at 690. Thus, the warrantless search was justified based on exigent circumstances.
As additional grounds to affirm, the State argues the search was also legal based on the "passenger compartment" and "plain odor" exceptions to a warrant requirement. See Wolstein v. Yorkshire Ins. Co., 97 Wn. App. 201, 206, 985 P.2d 400 (1999) (respondent permitted to make additional argument without filing a notice of cross review when arguing additional grounds for affirmance rather than affirmative relief). Although the State makes plausible arguments regarding the passenger compartment of the SUV and the plain odor exception (see State v. Grande, No. 81068-1, 2008 WL 2764576, (Wash. July 17, 2008)), the trial court focused on the exigent circumstance exception to the warrant requirement. Given our analysis thus far approving the trial court's reasoning, we need not reach the State's additional arguments. State v. Jenkins, 100 Wn. App. 85, 93, 995 P.2d 1268 (2000).
Affirmed.
A majority of the panel has determined 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.
SCHULTHEIS, C.J., and KORSMO, J., Concur.