Opinion
No. 39175-9-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 08-1-00031-4, David L. Edwards, J., entered April 13, 2009.
Reversed and remanded with instructions by unpublished opinion per Armstrong, J., concurred in by Worswick, A.C.J.; Quinn-Brintnall, J., dissenting.
Angela Parker appeals her conviction for unlawful possession of methamphetamine. She claims her conviction was the result of an illegal seizure of evidence under our state and federal constitutions. The State concedes error and agrees that we should dismiss the conviction.
Parker was a passenger in a vehicle that a City of Aberdeen police officer pulled over for a broken taillight. The officer arrested the driver for driving with a suspended license and subsequently ordered the passengers out of the vehicle. The officer then searched the vehicle and found a small bindle of methamphetamine. Parker admitted the bindle was hers. The trial court denied Parker's motion to suppress evidence gathered during the search.
This warrantless search was unlawful under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 1718-19, 173 L. Ed. 2d 485 (2009); State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009); State v. Valdez, ___ P.3d ___, 2009 WL 4985242 (2009). Therefore, we accept the State's concession and remand with instructions to dismiss the methamphetamine conviction.
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.
WORSWICK, A.C.J. concur.
Officer Chris Rathbun of the Aberdeen Police Department made a traffic stop for a defective tail light of a car in which Angela Parker was a passenger. Rathbun arrested the driver, Charles Look, for driving with a suspended license and placed him in his patrol car. As the driver stepped out of the vehicle, Rathbun saw a tuft of plastic sticking up behind the transmission. He could not see the entire package but testified that it was folded in an unusual way causing him to believe it was a "bindle" containing illegal drugs. Concerned for his safety, Rathbun had Parker step away from the vehicle and place her purse on the trunk of the car.
A "bindle" is a "catch-all phrase" referring to the "plastic that you store narcotics in." Report of Proceedings (Jan. 6, 2009) at 17.
Parker argues that Officer Rathbun unlawfully arrested her when he asked her to step out of the car and place her purse on the trunk so that he could search the vehicle incident to Look's arrest. At the time of the vehicle's search, Parker was not in police custody and could have left the scene if she had asked to do so. During the search, Rathbun retrieved the folded plastic that he saw in the vehicle when he arrested Look for driving with a suspended license and believed it contained methamphetamine. After the search, Parker claimed the bindle was hers and Rathbun arrested her. At the police station, Parker made additional statements indicating the drugs in the bindle from the car were hers. During the booking process, the police found more methamphetamine in Parker's bra.
Recent federal and state Supreme Court opinions limiting the scope of the vehicle search incident to arrest warrant exception do not prohibit police from arresting persons caught in the act of committing a crime nor do they relieve police of the responsibility to secure evidence of that crime lying in open view on the floor of the criminal's car at the time of the arrest. See Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (law enforcement officers may offend due process by failing to collect and preserve potentially useful evidence in bad faith); see also State v. Wittenbarger, 124 Wn.2d 467, 477, 880 P.2d 517 (1994) (State violates a defendant's due process rights by failing to preserve "potentially useful" evidence or by failing to preserve "materially exculpatory evidence" regardless of whether acting in bad faith (citing Youngblood, 488 U.S. at 58)).
Although Parker stipulated to possessing the methamphetamine found in her bra when she was booked into jail, she filed a pretrial motion challenging the lawfulness of her arrest. But Parker's motion challenged the vehicle traffic stop as pretextual and the lawfulness of her arrest, which is different than a challenge to the scope of a vehicle search incident to arrest. State v. Louthan, No. 38472-8-II, slip op. at 9-10 (Wash. Ct. App. Nov. 30, 2010). Accordingly, Parker did not challenge the legality of the vehicle search incident to Look's arrest at the trial level and may not raise this challenge now for the first time on appeal. State v. Millan, 151 Wn. App. 492, 499-500, 212 P.3d 603 (2009) (holding that a failure to file a motion to suppress evidence obtained during a search of a vehicle incident to an arrest fails to preserve for appellate review any error in the admission of the evidence at trial), review granted, 168 Wn.2d 1005 (2010); see also 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."); State v. Mierz, 72 Wn. App. 783, 789, 866 P.2d 65, 875 P.2d 1228 (1994) (a trial court does not err when considering evidence that a defendant did not move to suppress), aff'd, 127 Wn.2d 460, 901 P.2d 286 (1995); State v. Donohoe, 39 Wn. App. 778, 782 n. 5, 695 P.2d 150 ("Because a defendant can receive complete constitutional protection against the use of illegally obtained evidence through superior court suppression hearing procedures, and because the rights afforded by these constitutional provisions are not 'trial rights' or part of the 'truth-finding function' they can be waived."), review denied, 103 Wn.2d 1032 (1985).
Moreover, Parker stipulated to her possession of the methamphetamine found on her person, in her bra, during the booking process. Specifically, Parker's counsel told the trial court,
We are only stipulations [sic] the methamphetamine found at the police station in her bra would be sufficient to support a finding of guilt.
The methamphetamine . . . which was next to the console, we are not stipulating that that would be sufficient as a matter of law to support a conviction.
RP (Jan. 6, 2009) at 58. The trial court accepted this stipulation and found Parker guilty of a single count of unlawful possession of methamphetamine. Thus, any error in the search of the vehicle was clearly harmless in light of Parker's stipulated possession of the drugs found in her bra that resulted in her conviction.
Accordingly, I would reject the State's concession and respectfully dissent.