Opinion
No. 37119-7-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-01143-4, Richard A. Strophy, J., entered November 5, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
The State appeals the trial court's order suppressing evidence seized during a traffic stop. The State asserts that the trial court erred in granting Kristinna Whitt's motion to suppress evidence because the officer made a valid search of a bandana in Whitt's purse and, thus, Whitt's subsequent arrest and the search of her car were valid. The State also argues that, even if Whitt's arrest was not lawful, the inevitable discovery rule supports admission of the evidence. We disagree and affirm.
FACTS
Just past midnight on June 27, 2006, Washington State Patrol Trooper Kelly Gregerson saw a car that appeared to be traveling faster than the posted 25 m.p.h. speed limit. Gregerson paced the car at a speed of 45 m.p.h. and then activated emergency lights. The car did not immediately pull to the side of the road. Instead, it continued to drive for three-to four-tenths of a mile. During that time, Gregerson saw the driver, the sole occupant of the car, "mak[e] several furtive movements towards the lower center floor near her right leg," in what appeared to be an attempt to move or conceal something in the passenger compartment of the car. Clerk's Papers (CP) at 5. The movements continued until just before the car stopped.
The driver of the car was Whitt. Trooper Gregerson approached the car, obtained Whitt's identification card, and asked Whitt about the movements he saw. Whitt stated that she had been trying to put on her seatbelt. Gregerson, not believing that putting on a seatbelt would elicit such movements, asked Whitt to get out of the car and then conducted a pat down search of her person. Gregerson found no weapons, but he placed Whitt at the front of his patrol car anyway.
Whitt remained at the patrol car while Trooper Gregerson returned to Whitt's car and searched for any weapons in the area he had seen her make furtive movements. Gregerson found nothing of concern in plain sight. He then searched underneath the center dash and found a purse on the floor. The purse was approximately four-by-seven or four-by-eight inches in size, similar to a Kleenex box, and contained a red bandanna wrapped around a solid cylindrical object approximately four inches long and one inch in diameter. Unable to determine whether the object was a weapon or part of a firearm, Gregerson unrolled the bandana and found a clear glass pipe of the type commonly associated with methamphetamine. Gregerson returned to the car and placed Whitt under arrest for possession of methamphetamine.
At various times, Trooper Gregerson refers to the container as a "purse" and a "pouch." ("I found a little pouch . . . [a] zippered pouch," Report of Proceedings (Oct. 22, 2007).) To simplify, we will refer to the container as a purse.
At no time during Trooper Gregerson's testimony or in his original police report did he indicate he had a fear or concern for his safety during the incident. He also did not indicate that the shape and size of the object suggested that it might be a weapon, such as a zip gun or a silencer.
Trooper Gregerson arrested Whitt for possession of methamphetamine. He then searched her car and found two small plastic bags, both containing a crystalline substance. A field test of residue in the pipe and crystals in the bags identified both as methamphetamine. A Department of Licensing check completed after Gregerson had arrested Whitt for possession of methamphetamine revealed that she had a warrant for her arrest for third degree driving with a suspended or revoked license.
The State charged Whitt with unlawful possession of a controlled substance-methamphetamine (count I), unlawful use of drug paraphernalia (count II), and third degree driving with a suspended or revoked license (count III).
Whitt moved to suppress evidence obtained before and after her arrest. The trial court held a hearing at which Trooper Gregerson was the sole witness. In an oral ruling, the trial court granted Whitt's suppression motion.
The State moved for reconsideration based on additional information not originally presented to the trial court, specifically, a web search revealing numerous small knives and handguns of the appropriate size for wrapping in a bandana and hiding inside a purse. After hearing additional argument and considering the State's new information, the trial court denied the State's motion to reconsider and entered an order suppressing the evidence. A supplemental order entered by the trial court later found that the practical effect of the order suppressing evidence was to terminate prosecution of the case.
The record does not indicate what happened to the State's prosecution for count III, third degree driving while license suspended or revoked.
The State appeals.
ANALYSIS
Objectively Reasonable Concern for Officer Safety
On appeal of the suppression order, the State argues the trial court erred when it held that the warrantless search of Whitt's car was not justified by an objectively reasonable concern for officer safety. We disagree.
Warrantless searches are per se unreasonable under article I, section 7 of the Washington State Constitution. State v. Morse, 156 Wn.2d 1, 7, 123 P.3d 832 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)). Exceptions to the warrant requirement are "`jealously and carefully drawn.'" State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004) (quoting Hendrickson, 129 Wn.2d at 70-71). The State has the burden of showing that a challenged search falls within an exception. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984).
"No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Const. art. I, § 7.
We review the trial court's findings of fact on a motion to suppress under the substantial evidence standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is that amount sufficient to persuade a rational, fair-minded person of the truth of the finding. Hill, 123 Wn.2d at 644. If that standard is satisfied, we may not substitute our judgment for that of the trial court, even if we may have resolved a factual dispute differently. State v. Stimson, 41 Wn. App. 385, 390-91, 704 P.2d 1220 (1985). We review the trial court's conclusions of law pertaining to suppression of evidence de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
When necessary for officer safety, an exception to the warrant requirement allows for a valid Terry stop to include a search for weapons in the interior of a suspect's car. State v. Glossbrener, 146 Wn.2d 670, 677, 49 P.3d 128 (2002) (citing State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986)). But such a search must be supported by an objectively reasonable concern for officer safety, based on the officer's subjective perceptions. State v. Larson, 88 Wn. App. 849, 853-54, 946 P.2d 1212 (1997) (citing State v. Henry, 80 Wn. App. 544, 552, 910 P.2d 1290 (1995)). In other words, the officer must point to particular facts from which he reasonably inferred that the suspect was armed and dangerous. State v. Xiong, 64 Wn.2d 506, 511, 191 P.3d 1278 (2008) (quoting Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)). Generalized suspicions are insufficient to justify a search. Xiong, 64 Wn.2d at 511-12 (quoting State v. Sweet, 44 Wn. App. 226, 234, 721 P.2d 560, review denied, 107 Wn.2d 1001 (1986)). And an officer safety search must be confined to areas within the suspect's immediate control. Kennedy, 107 Wn.2d at 12; State v. Horton, 136 Wn. App. 29, 38, 146 P.3d 1227 (2006), review denied, 162 Wn.2d 1014 (2008).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Here, the trial court found the following facts relevant to this case:
1. On June 27, 2006 at 12:39 am, in Thurston County, Washington, State Patrol Trooper K N Gregerson stopped a vehicle for speeding 45 mph in a 25 mph zone. The trooper observed the driver making movements towards her right leg during the stop.
2. The trooper approached the vehicle and discovered that it was occupied by a single female, [Whitt]. The trooper asked the female for her driver's license and proof of insurance. The trooper then asked [Whitt] if, "There is anything in the vehicle that I need to know about?" [Whitt] replied, "There is not."
3. The trooper then directed [Whitt] to exit the vehicle, conducted a "pat down" search of [Whitt], found no weapons or contraband and placed [Whitt] seated on the front bumper of his police automobile.
4. The trooper then asked [Whitt] why she was moving during the stop and [Whitt] responded, "I was trying to put my seatbelt on."
5. While [Whitt] was detained at the police vehicle, the trooper returned to [Whitt's] vehicle, "To check the area where she was reaching around for weapons."
6. At the time of the search of [Whitt's] vehicle for weapons, [Whitt] was not under arrest.
7. At the time of the search of [Whitt's] vehicle, there was no weapon or unlawful substance in plain view.
8. In the vehicle, the trooper observed [Whitt's] brown purse between the center console and the driver's seat. The brown purse was approximately six inches long by four inches deep or the size of a small Kleenex box.
9. The trooper opened the purse which contained [Whitt's] makeup and credit cards and a red bandana.
10. The trooper felt the bandana and discovered it contained a cylindrical object approximately three to four inches long with a one inch diameter similar to a pipe used for drug usage.
11. The object in the red bandana was not similar to a weapon. The time and the circumstances, a lone female at 12:39 am, made it highly unlikely that the object in the bandana was a weapon.
12. The trooper unrolled the bandana and located a clear glass pipe which he recognized as used for methamphetamine.
13. The trooper placed [Whitt] under arrest for possession of methamphetamine, returned to the automobile and searched a jacket in the back of the vehicle and located two small baggies containing methamphetamine.
14. After the arrest and search, the trooper undertook a Dept of Licensing inquiry and discovered [Whitt] had an arrest warrant for Driving While License Suspended.
15. During the search and after the arrest, [Whitt] made no inculpatory statements.
16. When evaluating the entire circumstances of this traffic stop, it appears that the search of the red bandana in [Whitt's] purse was not reasonably based on officer safety concerns.
17. During testimony, the officer did not enunciate specific and articulable facts which had created an objectively reasonable belief that [Whitt] was armed and presently dangerous or that the object searched in the red bandana could be objectively viewed as a weapon.
18. At the point of the initial search of [Whitt's] automobile, there was no reasonable suspicion that [Whitt] was dangerous or would gain access to a weapon in the vehicle.
CP at 30-33. The State contests the last three findings regarding Trooper Gregerson's objectively reasonable concerns for officer safety.
Based on Trooper Gregerson's testimony, the trial court did not abuse its discretion in concluding that, in light of all the evidence presented, Gregerson's safety concerns were not objectively reasonable. The record does not contain any statements by Gregerson that he feared for his safety at the time of the incident. When he felt the object in the bandana, Gregerson perceived a solid, cylindrical object approximately four inches long and one inch in diameter. The State points out that weapons can often be small enough to fit inside a purse and that weapons can even be disguised as common items such as lipstick. But the mere fact that lipstick might be a weapon does not necessarily create an objectively reasonable fear that objects similar to a tube of lipstick might in fact be harboring a "lipstick weapon." More important, Gregerson did not point to particular facts from which he reasonably inferred that Whitt was armed and dangerous. He testified only to a generalized suspicion that was insufficient to justify the search.
The trial court did not address the validity of Trooper Gregerson's search of Whitt's purse in general. Whitt argues that the search of the purse itself was unlawful, as well as the further search of the bandana found inside the purse. We note that purses have a greater expectation of privacy than do items found on the person. See State v. White, 44 Wn. App. 276, 279, 722 P.2d 118, review denied, 107 Wn.2d 1006 (1986). But, because we review the trial court's findings for substantial evidence, and because the trial court here concluded that the search was invalid on other grounds, we decline to review the validity of the general search of Whitt's purse.
Relying on Kennedy, the State argues that furtive gestures of the type Whitt made may show that a suspect may be hiding something, a fact that can be sufficient to establish an objectively reasonable concern for officer safety and to support a limited search for weapons. But the Kennedy court found the officer's search proper because, once he reached under the front seat of the defendant's car, he immediately perceived a bag as containing marijuana. 107 Wn.2d at 13 (noting that, once the officer was legitimately within the area of the vehicle under the defendant's control, discovery of the contraband fell within the "plain view" doctrine, which requires that the intrusion be justified, the discovery inadvertent, and the item immediately recognizable as contraband). In contrast, here, Gregerson did not immediately identify the perceived item inside the bandana as either a weapon or drug paraphernalia. He merely stated that he "couldn't rule it out as a weapon." Report of Proceedings (Oct. 22, 2007) at 8. Accordingly, the State's evidence was insufficient to satisfy its burden to establish a reasonable suspicion that Whitt was armed and that officer safety justified a warrantless search of Whitt's vehicle. Inevitable Discovery
The 1986 case of Kennedy appears to be an early example of the development of the "objectively reasonable concern for officer safety" standard. Compare Kennedy, 107 Wn.2d at 12 (holding that the officer's limited search for weapons was reasonable, given his objective reasons for doing so) with Larson, 88 Wn. App. at 857 ("Because [the officer's] concern for his safety was objectively reasonable, he acted lawfully in searching inside the truck."). In this early case, the Kennedy court did not specify whether the officer had testified to any concerns for his safety. See 107 Wn.2d 1.
The State also argues that there was no evidence to support the trial court's finding that the search of the bandana was a pretext search. But the trial court made no such finding in its order and Whitt does not contend that the search was pretextual. For those reasons, and because we hold that the bandana search was invalid on other grounds, we need not address this argument by the State.
The State also argues that the inevitable discovery rule precludes suppression of the evidence. Again, we disagree. Evidence that is the fruit of an unlawful search or seizure is generally inadmissible. See, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). An exception to the rule is when the State can establish, by a preponderance of the evidence, "that the evidence ultimately or inevitably would have been discovered using lawful procedures." State v. O'Neill, 148 Wn.2d 564, 591, 62 P.3d 489 (2003).
In finding that the inevitable discovery rule did not apply to the search of Whitt's car, the trial court relied on O'Neill. 148 Wn.2d at 591. In that case, the officer saw what appeared to be a cook spoon on the floor of the suspect's car. O'Neill, 148 Wn.2d at 572. Without obtaining valid consent, the officer searched the car and found a pipe and a bag apparently containing cocaine. O'Neill, 148 Wn.2d at 573, 591. The officer then arrested the defendant. O'Neill, 148 Wn.2d at 573. Although, even absent the cook spoon and invalidly obtained pipe and cocaine, the State had probable cause to arrest the defendant for driving while license suspended or revoked, the Supreme Court held:
[T]he inevitable discovery rule cannot be applied in these circumstances, because it would undermine our holding that a lawful custodial arrest must be effected before a valid search incident to that arrest can occur. If we apply the inevitable discovery rule, there is no incentive for the State to comply with article I, section 7's requirement that the arrest precede the search.
O'Neill, 148 Wn.2d at 592 (footnote omitted).
The State contends that O'Neill does not apply because, at the time Trooper Gregerson made the second search of Whitt's car and discovered the bags of methamphetamine, he had already arrested her. But the State reads the word "lawful" out of the court's holding in O'Neill. And because Whitt was not lawfully arrested before Gregerson searched her car, the inevitable discovery rule does not apply. Accordingly, the State's inevitable discovery argument fails.
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.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.