Opinion
No. 30685-9-II
Filed: November 30, 2004
Appeal from Superior Court of Pierce County. Docket No: 03-1-00425-3. Judgment or order under review. Date filed: 08/01/2003. Judge signing: Hon. Thomas J Felnagle.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
Counsel for Respondent(s), John Michael Sheeran Attorney at Law, Pierce Cty Prosecutor S 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102
Sharilyn Jeanine Stone appeals her conviction of unlawful possession of a controlled substance, arguing that the warrantless search of her purse was unlawful and that the trial court erred in refusing her proposed jury instruction on unwitting possession. We affirm.
Facts
On January 24, 2003, two police officers responded to a 911 call from a Tacoma bank concerning a possible attempt to cash a forged check. The officers had received a description of the woman who presented the check. When they arrived at the bank, they saw Stone, who fit that description, pacing in the parking lot. Stone was holding a purse. Officer Donald Stodola went into the bank to investigate while Officer James Bowen stayed with Stone in the parking lot. After talking to the bank personnel and to Stone, the officers arrested her for forgery.
Before putting Stone in the patrol car, Officer Bowen patted her down and took her purse from her. During his search of the purse, he asked Stone whether there was anything in it that could poke him or that he should know about. She replied that there might be drugs in her purse, but she added that if there were, they did not belong to her. Bowen continued his search and found methamphetamine inside a container.
The State charged Stone by amended information with forgery, unlawful possession of a controlled substance, and bail jumping. The trial court found Stone's post-arrest statements admissible following a CrR 3.5 hearing. At trial, Officers Stodola and Bowen testified to the facts cited above. Defense witness James Sperline testified that he saw Stone seize drugs from her daughter a few days before the bank incident and put them in her purse. Stone, who was her daughter's employer, fired her because of the drugs.
After the trial court granted the State's motion to dismiss the bail jumping charge and rejected Stone's proposed instruction on unwitting possession, the jury found Stone guilty as charged. She now appeals her drug conviction.
Discussion I.
Stone argues initially that the search of her purse was unlawful under both the state and federal constitutions.
Before reaching the merits of this issue, we must determine whether it is appropriate for review. Stone did not challenge the search at trial or file a motion to suppress the evidence seized, but she maintains that the search constitutes a 'manifest error affecting a constitutional right' that may be addressed for the first time on appeal. See RAP 2.5(a). The State responds that because the record is not sufficient to review this issue, it cannot be described as 'manifest' and thus appropriate for review. See State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). The State contends that the record is silent on key facts, such as who the purse belonged to, where it was at the time of arrest, whether it was locked, and how much time elapsed between the arrest and the search.
We find evidence in the record showing that Stone was in possession of her purse at the time of arrest and that its search took place shortly following her arrest. The officer did not state that he had any difficulty opening the purse, and Stone does not assert on appeal that it was locked. Nor does she contend that it did not belong to her. We find the record adequate to address the merits of Stone's challenge. See State v. Contreras, 92 Wn. App. 307, 314, 966 P.2d 915 (1998) (finding record adequate to review suppression issue in absence of motion and trial court ruling thereon).
A warrantless search is per se unreasonable under the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution unless it falls within one of the exceptions to the warrant requirement. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). A search incident to arrest is one such exception. Johnson, 128 Wn.2d at 447. This exception is based on concern for officer safety and the need to prevent destruction of evidence. Johnson, 128 Wn.2d at 447. Any evidence that is seized incident to arrest may be used to prosecute the arrestee for a crime other than the one for which he or she was initially arrested. State v. Jordan, 92 Wn. App. 25, 30, 960 P.2d 949 (1998), review denied, 137 Wn.2d 1006 (1999).
The supreme court cited article 1, section 7 in upholding the search of a purse pursuant to this exception in State v. Fladebo, 113 Wn.2d 388, 779 P.2d 707 (1989). Officers investigating a car accident involving Fladebo cited her for driving under the influence of drugs. After placing Fladebo in a patrol car, they returned to her car, and a passenger identified a purse therein as Fladebo's. The officers searched the purse and discovered drugs. Fladebo, 113 Wn.2d at 390. The court held that the officers were entitled to search Fladebo's purse immediately following her arrest and rejected Fladebo's contention that a purse deserves the same protection as a locked container. Fladebo, 113 Wn.2d at 395; see State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986) (barring warrantless search of locked container found in car's passenger compartment).
The supreme court applied the Fourth Amendment in upholding the search of a fanny pack under the search incident to arrest exception in State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992). In Smith, the juvenile arrestee was wearing a fanny pack just before his arrest, but it got knocked off during a struggle with the arresting officer. Even though the fanny pack remained in the exclusive control of the officer after it was retrieved, thereby eliminating the possibility that the arrestee could gain access to a weapon or destroy evidence, the court determined that the subsequent search of the fanny pack incident to arrest was proper. Smith, 119 Wn.2d at 682-83. Division One observed that Smith clarified the scope of a search incident to arrest of containers such as purses, brief cases, and back packs. State v. Lowrimore, 67 Wn. App. 949, 959-60, 841 P.2d 779 (1992). The search of such containers incident to arrest is lawful under the Fourth Amendment if the object searched was within the arrestee's control when he or she was arrested and if the events occurring after the arrest but before the search did not render the search unreasonable. Smith, 119 Wn.2d at 681.
Under this rule, the search of Stone's purse was lawful because her purse was within her control at the time of her arrest and the search occurred contemporaneously with the arrest. Stone argues, however, that a different result follows from this court's analysis in State v. Johnston, 31 Wn. App. 889, 645 P.2d 63 (1982). In Johnston, officers searched the defendant's purse, which they found on the closet floor of an office, after obtaining consent from the owner of the premises to search for the purse. This court found that search unlawful under the Fourth Amendment. Johnston, 31 Wn. App. at 891.
Johnston does not conflict with Smith and is readily distinguishable from the present case. In Johnston, there was no evidence that the purse was searched incident to the defendant's arrest or that it was within her control at the time of arrest. By contrast, Stone was carrying her purse when the officers arrested her, and its search was justified by concerns for officer safety and by the need to prevent the possible destruction of evidence while the officers transported Stone in the patrol car. The fact that the drugs were found in a container inside the purse carries no legal significance. See Fladebo, 113 Wn.2d at 390 (drugs found in kit located inside purse). The officer's search of Stone's purse did not violate either the Fourth Amendment or article 1, section 7.
Because we reject this issue on the merits, we need not discuss Stone's alternative argument that she received ineffective assistance of counsel when her attorney failed to file a motion to suppress under CrR 3.6. See State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (ineffective assistance established by showing that defense counsel's performance was deficient and resulted in prejudice).
II.
Stone also argues that the trial court erred in refusing her proposed instruction on unwitting possession.
A trial court must give an instruction on a party's theory of the case if there is evidence to support the instruction. State v. Birdwell, 6 Wn. App. 284, 297, 492 P.2d 249, review denied, 80 Wn.2d 1009 (1972). The failure to give such an instruction constitutes reversible error. Birdwell, 6 Wn. App. at 297.
To prove unlawful possession of a controlled substance, the State must establish the nature of the substance and the fact of the defendant's possession. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Once the State establishes prima facie evidence of possession, the defendant may assert that her possession of the drug was unwitting. Staley, 123 Wn.2d at 799. The defense of unwitting possession may be supported by a showing that the defendant did not know she was in possession of the controlled substance or did not know the nature of the substance she possessed. Staley, 123 Wn.2d at 799.
Here, the defense presented evidence showing that Stone put drugs in her purse with full knowledge of their nature and then apparently forgot about them. As the trial court reasoned, these facts do not support an unwitting possession defense:
[U]nder her theory, every time when she forgets she has [drugs], she's immune from prosecution, but every time she's remembering she has them, she's not. That wouldn't work. That would be a test that would be impossible to administer.
3 Report of Proceedings (Jul. 22, 2003) at 310. We agree. The trial court did not err in rejecting Stone's proposed instruction on unwitting possession.
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 HUNT, J., Concur.