Opinion
No. 61451-7-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-11199-5, Sharon S. Armstrong, J., entered March 24, 2008.
Affirmed by unpublished per curiam opinion.
Neither the Fourth Amendment nor article I, section 7 of the Washington State Constitution prohibits the admission of evidence discovered by a police officer in the course of a limited protective search of a motor vehicle made incident to a lawful investigative stop and detention. Here, given the police officer's objectively reasonable concerns for her safety, the limited search for a weapon was reasonable. The decision of the trial court to deny the motion to suppress is affirmed.
FACTS
At approximately 2:30 p.m. on October 1, 2007, Des Moines Police Officer Cathy Bumpus noticed a car parked at the end of a dead end street. The area was known for its high volume of drug, prostitution and gang activity, so she decided to drive down the street. As Bumpus approached, the car drove past her at a high rate of speed. Bumpus observed in her rear view mirror that the vehicle had no operable brake lights. She followed the car and eventually activated her wigwag lights to signal the driver to pull over.
The driver pulled into a gas station and stopped. Bumpus approached the driver's side of the car and spoke to its sole occupant. She noticed the driver was a man, later identified as Robert L. Woods, and immediately observed that he was sweating profusely, that his body was twitching, and that he could not sit still. Bumpus found this behavior "unnerving." Bumpus noticed that Woods' right hand was between the driver's seat and the center console of the car. Bumpus asked Woods for his driver's license, registration and proof of insurance. He did not give his driver's license and proof of insurance when asked. He claimed he began to shake his leg to indicate that his driver's license was in his wallet in a pocket of his cargo pants. Bumpus told Woods to remove his right hand from between the seats and place it in plain view. He did not initially comply, but continued to move his hand in and out of sight. Bumpus was afraid that Woods had a weapon concealed between the seats so she pulled out her gun and commanded Woods to show his right hand. He complied and placed his right hand on the driver's seat next to his leg. The officer then directed Woods to exit the vehicle and lie face down on the ground while she placed handcuffs on him. Woods did so, but continued to twitch and move about. He began yelling and swearing at the officer. Bumpus frisked Woods for weapons, found none, and seated him in the back of her patrol car. Bumpus explained to Woods that he was not under arrest but that he was being detained for reasons of officer safety. Bumpus thought Woods probably had just "done drugs," but claimed she was not thinking there might be drugs in the car, but thought there was probably a gun. Before she could check the car, Police Officer Fred Gendreau arrived to assist with the stop.
Gendreau said that at the time of his arrival Woods was extremely agitated, sweating and using profanity. Bumpus told Gendreau she suspected there was a gun between the driver's seat and console or under the seat and asked that Gendreau to check the seat area before she continued her stop. Gendreau first checked under the driver's seat and found nothing, and then he checked between the seats and found a small glass pipe. The pipe appeared to contain cocaine and residue, including a small white rock in the pipe. The pipe was charred at one end and still warm. Gendreau stopped the search, exited Woods' vehicle, and walked back to Bumpus' patrol car. Gendreau notified Bumpus there was no gun, but that he found suspected narcotics in a crack pipe. Officer Bumpus then informed Woods he was under arrest for suspicion of possession of a controlled substance. Miranda rights were given.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Bumpus asked Gendreau to impound the vehicle, so he conducted an additional search of the car Woods had been driving. Gendreau located three additional pieces of crack cocaine in open view in the center console between the front seats.
After Woods was booked on violation of the Uniform Controlled Substances Act (VUCSA) charges, Bumpus weighed the pieces of white rock and obtained a total weight of .6 grams. A field test of the substance yielded a positive test for the presence of cocaine.
Robert L. Woods was charged with possession of cocaine and driving under the influence. Before trial, CrR 3.5 and CrR 3.6 suppression hearings were held. The trial court viewed the audio/video recording of the traffic stop and subsequent search, and heard testimony from Officers Gendreau and Bumpus, as well as from Woods. Woods testified that prior to the stop he had ingested cocaine. He admitted that cocaine could make him jumpy and "keyed up." He also admitted he was sweating and that when asked for his driver's license and registration he did not give them to the officer, but shook his right leg as his wallet was in a pocket of his cargo pants. He said he was afraid that if he reached for his wallet that Bumpus might shoot him. Woods admitted that it did not seem like Bumpus understood what he was trying to tell her and it was clear to him that she was scared and concerned for her safety.
At the hearing, Woods argued that the evidence found pursuant to the search should have been suppressed because there was no objectively reasonable concern for officer safety to justify the search and seizure of his person and vehicle. The trial court disagreed and found that Officer Bumpus was reasonably concerned for her safety because of her objective belief that Woods had a weapon in his vehicle. The court found that Woods' behavior and demeanor gave the officer this concern. The court also found the video showed Woods focusing on the area just to the right of the driver's seat. Because of Woods' extreme state of agitation, as illustrated in the video as well as through testimony, the court found that it was objectively reasonable for Officer Bumpus to be concerned for her safety and have the vehicle searched. The trial court denied the motion to suppress.
Woods waived his right to a jury trial and the trial court found him guilty of the VUCSA charge, possession of cocaine. He appeals, claiming the trial court erred in failing to suppress the evidence.
ANALYSIS
This court will affirm a trial court's refusal to suppress evidence if substantial evidence supports the findings of fact, and those findings support the conclusions of law. We review the trial court's conclusions of law de novo.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
Limited Protective Search
Woods argues the trial court erred in denying his motion to suppress where police made a warrantless search of the vehicle without an objectively reasonable concern for officer safety.
Generally, warrantless searches and seizures are unreasonable and violate the Fourth Amendment and article I, section 7 of the Washington State Constitution. Courts have recognized a few carefully drawn exceptions to the warrant requirement, including consent, exigent circumstances, plain view searches, inventory searches, searches incident to arrest, and under investigatory stops pursuant to Terry v. Ohio.
State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).
Duncan, 146 Wn.2d at 171-72; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
In Terry, the Supreme Court held that if an initial traffic stop is justified, a police officer may make a reasonable search for weapons without violating the Fourth Amendment, if the circumstances lead the officer to reasonably believe that his safety is endangered. "A protective search for weapons must be objectively reasonable, though based on the officer's subjective perception of events."
Terry, 392 U.S. at 20-27.
See Duncan, 146 Wn.2d at 172.
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)).
Conversely, it is true that a search is not lawful under the officer safety exception if there is no objectively reasonable belief that the defendant is armed and dangerous. And an initial reasonable belief may be nullified by the subsequent actions of the police officer or the driver. If the police officer's professed belief that the suspect was dangerous was not objectively reasonable, then the fruits of the search may not be admitted in court.
State v. Glossbrener, 146 Wn.2d 670, 684, 49 P.3d 128 (2002).
Glossbrener, 146 Wn.2d at 681-82.
State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999).
The existence of an objectively reasonable concern for officer safety is determined on the basis of the entire circumstances of the stop and does not depend on whether the driver remains in the vehicle.
Glossbrener, 146 Wn.2d at 679.
Turning to the fact of this case, at the time Bumpus contacted Woods he was agitated, sweating profusely, and he had his right hand between the seat and the console where the officer could not see it. Woods would put his hand down between the seat and console and then bring it back up again in an erratic manner. This was true until the officer drew her gun and Woods brought his hand up to where she could see it. These facts support the officer's reasonable safety concern. As noted in State v. Kennedy, the scope of the search during a Terry stop should be limited to the extent sufficient to assure the officer's safety. "It would be unreasonable to limit an officer's ability to assure his own safety." Given Officer Bumpus' objectively reasonable concerns for her safety, the limited search of the car for a weapon was reasonable. The result of that search did not reveal a weapon, but a crack pipe with cocaine and other residue. Because the seizure was lawful, the trial court's denial of the motion to suppress is affirmed.
The facts of this case are distinguishable from those in Glossbrener, a case relied on by Woods. In Glossbrener, the court found that the officer may have had a reasonable belief that the defendant was armed when he first observed the furtive movement, but any such belief was no longer objectively reasonable at the time he conducted the search because of the intervening actions of the officers and the driver. That is not the case here.
107 Wn.2d 1, 12, 726 P.2d 445 (1986).
Kennedy, 107 Wn. 2d at 12.
Search Incident to Arrest
For the first time on appeal Woods also challenges the search incident to his arrest. He argues that, because he was arrested, handcuffed, and placed in the back of the patrol car, the warrantless search of the car was unreasonable as it was not justified under the search incident to arrest exception to the exclusionary rule. He asserts there was no exigency preventing the officers from obtaining a search warrant. He claims the search is unconstitutional based on the reasoning of the recent Arizona case of State v. Gant. There, the Arizona Supreme Court held that when an arrestee is secured and is no longer a threat to officer safety or the preservation of evidence, the officer may not search the arrestee's vehicle incident to arrest.
216 Ariz. 1, 162 P.3d 640 (2007), cert. granted, ___ U.S.___, 128 S. Ct. 1443, 170 L. Ed. 2d 274 (2008).
Gant, 162 P.3d at 646.
Generally, an issue may not be raised for the first time on appeal. An exception is made for issues that constitute manifest constitutional error. As an exception to the general rule, RAP 2.5(a)(3) is not intended to give a criminal defendant the means to obtain a new trial whenever he or she can identify some constitutional error not raised before the trial court. Rather, the claimed error must be manifest; i.e., if it resulted in actual prejudice to the defendant and had practical and identifiable consequences.
RAP 2.5(a).
RAP 2.5(a)(3); Parrell-Sisters MHC, LLC v. Spokane County, 147 Wn. App. 356, 363-64, 195 P.3d 573 (2008).
State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995); State v. Lynn, 67 Wn. App. 339, 345-46, 835 P.2d 251 (1992).
At the CrR 3.6 suppression hearing, Woods argued only that the officer did not have an objectively reasonable belief that the limited search was necessary for officer safety. A party cannot raise grounds for suppression on appeal that are significantly different from the ones raised below. While Woods' claim is constitutional in nature, any alleged error in admitting the evidence cannot be deemed manifest here.
United States v. Barrett, 703 F.2d 1076, 1086 n. 17 (9th Cir. 1983) (court refuses to consider grounds for suppression not raised at trial level); Moreau v. State, 588 P.2d 275, 280 (Alaska 1978); 5 Wayne R. LaFave, Search and Seizure § 11.1(a), at 8 (3d ed. 1996).
See State v. Kirkpatrick, 160 Wn.2d 873, 161 P.3d 990 (2007).
But even if we address Woods' claim, he does not prevail. In New York v. Belton, the Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." In State v. Stroud, the Washington Supreme Court adopted the Belton court's "bright-line rule" holding that "[d]uring the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle." Under the bright line rule set forth in Belton and Stroud, the search of Woods' car incident to his arrest was proper and constitutional. While a change in the law might be on the horizon, until then, this court is bound to follow the precedent established in those cases.
453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (footnotes omitted).
106 Wn.2d 144, 152, 720 P.2d 436 (1986).
Stroud, 106 Wn.2d at 152.
Depending on the U.S. Supreme Court decision in Gant (oral argument heard October 7, 2008).
State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984); State v. Burkins, 94 Wn. App. 677, 701, 973 P.2d 15 (1999).
The decision of the trial court is affirmed.