Opinion
No. 34025-9-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Skamania County, No. 05-1-00061-7, E. Thompson Reynolds, J., entered November 3, 2005.
Reversed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Penoyar, J.
The State appeals the trial court's order suppressing evidence obtained in a warrantless search of Randall J. Patton's vehicle, arguing that the search was incident to Patton's arrest. Because the arresting officer told Patton he was under arrest and a reasonable person in Patton's position would have concluded that he was under arrest when he was in the open door of his vehicle, the officers could search Patton's vehicle incident to his arrest. Accordingly, we reverse.
FACTS
On the night of March 19, 2005, Skamania County Sheriff's Deputy Tim Converse went to a trailer to arrest Randall J. Patton on an outstanding felony warrant. Converse saw Patton's vehicle parked outside the trailer.
The parties did not dispute the underlying facts. Neither party presented testimony at the CrR 3.6 hearing.
While waiting for back up, Converse saw the dome light in the vehicle come on and saw Patton "rummaging around" inside the driver's door. Clerk's Papers (CP) at 16. Concerned that Patton might drive away, Converse approached, told Patton he was under arrest, and ordered him to put his hands behind his back. Patton, who still had his head inside the vehicle when Converse spoke, stood up and ran inside the trailer. Converse pursued Patton but was unable to open the trailer's door.
A few minutes later, two other sheriff's deputies arrived. They entered the trailer, handcuffed Patton, and put him in Converse's patrol car. The deputies then searched Patton's vehicle and found two baggies of suspected methamphetamine and $122 in cash under the driver's seat.
The State charged Patton with one count of unlawful possession of methamphetamine and one count of resisting arrest. Patton moved under CrR 3.6 to suppress the evidence obtained from his vehicle. The trial court granted the motion, concluding that Patton was not under arrest until he was taken into physical custody in the trailer. The State appeals.
ANALYSIS
The State contends that the trial court erred in concluding that the search of Patton's vehicle was not incident to his arrest. We agree.
Where, as here, the parties do not challenge a trial court's findings of fact, we treat them as verities on appeal. State v. Shaver, 116 Wn. App. 375, 379, 65 P.3d 688 (2003). We review a trial court's conclusions of law in a suppression order de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
The United States and Washington constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; Wash. Const. art. I, §§ 7. Warrantless searches are per se unreasonable unless they fall within one of the exceptions to the warrant requirement. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999). These exceptions are narrowly drawn and jealously guarded. Parker, 139 Wn.2d at 496.
The State bears the burden of showing that a warrantless search falls within an exception. Parker, 139 Wn.2d at 496.
One exception to the warrant requirement is a search incident to arrest. State v. Stroud, 106 Wn.2d 144, 147, 720 P.2d 436 (1986) (plurality opinion). Police officers may search the area within an arrestee's immediate control incident to a lawful arrest to ensure officer safety and prevent destruction of evidence. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). When an arrestee is occupying a vehicle at the time of arrest, the police may search the vehicle's entire passenger compartment incident to the arrest. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); Stroud, 106 Wn.2d at 152. A search incident to arrest is permitted "[d]uring the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car." Stroud, 106 Wn.2d at 152.
The State argues that Patton was under arrest at the moment Converse stated he was under arrest and, therefore, the officers could lawfully search Patton's vehicle incident to his arrest.
Contrary to Patton's assertion, the trial court did not make a finding of fact that Patton was not under arrest when he was in or near his vehicle. The findings of fact merely describe the sequence of events. The trial court concluded as a matter of law that Patton was not under arrest while at his vehicle, and the State properly assigned error to the trial court's conclusions of law.
A person is under arrest for constitutional purposes when, by a show of authority, his freedom of movement is restrained. State v. Holeman, 103 Wn.2d 426, 428, 693 P.2d 89 (1985) (citing United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). The test is whether a reasonable person, under the circumstances, would have believed he was in custody. State v. Rivard, 131 Wn.2d 63, 75, 929 P.2d 413 (1997). The officer's subjective intent is irrelevant unless reflected in his actions. State v. O'Neill, 148 Wn.2d 564, 574-77, 62 P.3d 489 (2003). The crucial questions include whether, and to what extent, the officer has used force or displayed authority. See O'Neill, 148 Wn.2d at 577.
Here, Converse did not use force to physically apprehend or restrain Patton while Patton was in or near his vehicle. But Converse did display authority — he told Patton he was under arrest and instructed him to place his hands behind his back. A reasonable person, upon hearing a law enforcement officer tell him he is under arrest, would conclude that he is in fact under arrest and is therefore not free to leave.
Courts have developed a body of case law to determine when a person is under arrest if the officer has not explicitly informed the person he is under arrest. See, e.g., Rivard, 131 Wn.2d at 76 (considering factors "commonly associated with an arrest," such as physical apprehension or restraint, handcuffing, being placed in police vehicle or transported to a police station, drawing of a weapon, and reading of rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). Where the officer does explicitly state that a person is under arrest, consideration of these factors is superfluous.
Patton points out that the trial court made no finding that he was actually aware of a show of authority by a law enforcement officer constituting an arrest. He cites the definition of arrest from State v. Byers, 88 Wn.2d 1, 6, 559 P.2d 1334 (1977) (holding that a person is under arrest "from the moment [he was] not, and knew [he was] not, free to go"), overruled by State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984). Br. of Respondent at 6-8. But Williams overruled the Byers definition of arrest because the Byers rule blurred the distinction between an arrest and a Terry stop. Williams, 102 Wn.2d at 741 n. 5. We now define an arrest by an objective standard: whether a reasonable person in the same situation would believe he is under arrest. See Rivard, 131 Wn.2d at 75-76.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Patton relies on State v. Rathbun, 124 Wn. App. 372, 101 P.3d 119 (2004). There, Rathbun was standing in the open door of his truck when police officers approached in a patrol car intending to execute an arrest warrant. Rathbun, 124 Wn. App. at 375. Upon seeing the officers, Rathbun ran about 40 to 60 feet from his truck and jumped over a fence; the officers apprehended him on the other side of the fence.
Rathbun, 124 Wn. App. at 375. Twenty-five to thirty seconds elapsed from the time the officers turned into Rathbun's driveway to the time they apprehended him. Rathbun, 124 Wn. App. at 375. The officers searched Rathbun's truck and found methamphetamine and various drug paraphernalia. Rathbun, 124 Wn. App. 375.
We held that the search of Rathbun's truck was not a lawful search incident to arrest. Rathbun, 124 Wn. App. at 380. We explained that the test is whether the vehicle was within the arrestee's immediate control " t the time the police initiate[d] an arrest.'" Rathbun, 124 Wn. App. at 378 (quoting State v. Porter, 102 Wn. App. 327, 333, 6 P.3d 1245 (2000) (emphasis in original). We concluded that Rathbun did not have "immediate control" of his vehicle at the time the officers initiated the arrest, 40 to 60 feet away from the truck and on the other side of a fence. Rathbun, 124 Wn. App. at 378.
Rathbun is distinguishable. Here, Converse initiated the arrest (by informing Patton he was under arrest) while Patton was standing in the open door of his vehicle. At that moment, the vehicle was within Patton's immediate control; he had the opportunity to destroy evidence or obtain a weapon from within the vehicle. Thus, the justifications underlying the search incident to arrest exception were present. See Stroud, 106 Wn.2d at 151-52.
Rathbun, on the other hand, ran from his truck when he saw the officers' patrol car turn into his driveway. Rathbun, 124 Wn. App. at 378. Although the officers intended to arrest him, their subjective intent was irrelevant. O'Neill, 148 Wn.2d at 574-77. A reasonable person would not conclude he was under arrest if he merely saw a patrol car turn into his driveway. See Rivard, 131 Wn.2d at 75. Thus, the officers had not initiated the arrest at the time Rathbun was standing in the door of his truck. Rathbun did not have control over his vehicle when the officers began the arrest process; Patton did have control of his vehicle when Converse began the arrest process.
Moreover, under the trial court's reasoning, a person who flees when an officer tells him he is under arrest but before the officer takes physical custody of him could not be charged with resisting arrest, an illogical result. See RCW 9A.76.040(1) ("A person is guilty of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from lawfully arresting him.").
Finally, Patton argues that he had no way of knowing whether the officer was truly a police officer. He reasons that a burglar or home invader could have made the same statement. But Patton did not argue this below and the trial court did not litigate it. We generally do not consider arguments advanced for the first time on appeal, and we decline to do so here. See State v. Williams, 137 Wn.2d 746, 749, 975 P.2d 963 (1999).
The trial court erred in concluding that Patton was not under arrest when Converse told Patton he was under arrest while he stood in his vehicle's open door. The search of Patton's vehicle was a lawful search incident to his arrest and the trial court erred in suppressing the evidence obtained from the search.
Patton also asks this court to find that there is a "trend" of bootstrapping vehicle searches incident to the arrest of persons with outstanding arrest warrants. Br. of Respondent at 11. But the search incident to arrest exception does not depend on the reason why the officer makes the arrest; it is instead based on securing officer safety and preventing the destruction of evidence. Belton, 453 U.S. at 457. These concerns are present no matter what the reason for the arrest. And, contrary to Patton's assertions, an arrest under a valid arrest warrant is not merely a pretext to obtain a search of a vehicle; it is a valid exercise of police authority. We decline to consider Patton's argument.
Reversed.
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.
We concur: Houghton, CJ., Penoyar, J.