State v. Valdez

¶1 In this consolidated case, Jesus David Buelna Valdez and Reyes Rio Ruiz challenge the search of their vehicle incident to Valdez’s arrest on an outstanding felony warrant, arguing that the search exceeded the scope of a search incident to arrest under the Washington State Constitution, article I, section 7. They argue that the trial court should have suppressed the evidence found in the vehicle during a search by a K-9 unit. We agree.

Van Deren, J. —

*283¶2 Ruiz also asserts that his statements alone are insufficient to convict him. We agree with Ruiz that the corpus delicti rule in Washington requires more than the accused’s statements for conviction.

¶3 Accordingly, we reverse and remand with instructions to suppress the seized evidence.

Factual Background

¶4 On May 10, 2005, at approximately 7:45 pm, Detective Tom Dennison of the Clark County Sheriff’s Department observed a Chevrolet Lumina minivan turning north onto Northeast 15th Avenue from an apartment complex parking lot in the Hazel Dell area of Clark County, Washington. Dennison stopped the vehicle because one of its headlights was not working. Valdez was driving and Ruiz was sitting in the front passenger seat. The vehicle stopped no more than 100 to 200 feet from a Vancouver School District school bus route stop.

¶5 Valdez presented his Washington State identification card in lieu of a driver’s license. When Dennison conducted a records check, he discovered that Valdez had an outstanding felony warrant for his arrest. At 7:53 pm, Deputy Sean Boyle arrived to assist Dennison. Dennison arrested Valdez on the warrant, handcuffed him, and placed him in the back of the patrol car.

¶6 Dennison ordered Ruiz to step out of the vehicle, and Boyle watched Ruiz while Dennison searched the interior of the vehicle. Dennison noticed that there were loose interior panels that appeared to have been tampered with. After hearing Valdez’s statements and knowing that drugs are sometimes hidden behind plastic panels in vehicles and that panels are sometimes loose from being removed, the officers decided to call in Deputy Brian Ellithorpe and his certified narcotics detection dog. Ellithorpe and the dog arrived at 8:20 pm.

¶7 Ellithorpe directed the dog to search. The dog alerted to an interior vent in a driver’s-side panel near the middle *284row of seats. Ellithorpe traced the vent to the third row of seats. There, he found a molded plastic cup holder. Elli-thorpe popped the cup holder out and removed the underlying insulation. He found two packages containing a granular or crystalline substance under the insulation. Dennison then placed Ruiz under arrest. The result of a field test on the packages was positive for methamphetamine. The Washington State Patrol laboratory found that the crystalline substance in each package was methamphetamine hydrochloride.

Procedural Facts

¶8 The prosecutor charged Valdez and Ruiz with one count of unlawful possession of a controlled substance— methamphetamine hydrochloride — with intent to deliver within 1,000 feet of a school bus stop. Valdez and Ruiz filed unsuccessful motions to suppress the seized methamphetamine. They waived a jury trial and were both found guilty in a bench trial of the charged crimes. They appeal.

ANALYSIS

I. Search Incident to Arrest

¶9 Valdez and Ruiz argue that the trial court erred in failing to suppress the methamphetamine because the search resulting in its seizure was a constitutionally impermissible warrantless search incident to a driver’s arrest. We review the reasonableness of a search or seizure de novo. State v. Hoffman, 116 Wn.2d 51, 97-98, 804 P.2d 577 (1991).

¶10 As our Supreme Court has stated:

The fourth amendment to the United States Constitution provides that warrants may be issued only upon a showing of “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The Constitution *285requires that a detached and neutral magistrate or judge make the determination of probable cause.
Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched.

State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004) (footnote and citation omitted).

¶11 Absent an exception to the warrant requirement, a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. See State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). Evidence seized during an illegal search may be suppressed under the exclusionary rule as “fruit of the poisonous tree.” State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999); see State v. O’Bremski, 70 Wn.2d 425, 428, 423 P.2d 530 (1967).

¶12 A search incident to arrest is a well-recognized exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001); State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). But in Washington, the exception to the warrant requirement is narrowly and jealously guarded. Stroud, 106 Wn.2d at 147. A valid search incident to arrest requires that a lawful arrest is made and that a search is conducted of the area within the immediate control of the individual arrested. Chimel, 395 U.S. at 763.

f 13 The United States Supreme Court has established a bright-line rule that if a lawful arrest is made of an occupant in a vehicle, an officer may search the passenger compartment of the vehicle because the arrestee might grab a weapon or destroy evidence located within the compartment. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); Johnson, 128 Wn.2d at 447. Our Supreme Court has drawn this exception more narrowly and has held that, incident to the driver’s arrest, *286police may search any area of the interior of a vehicle that the driver may reach without leaving the vehicle. Johnson, 128 Wn.2d at 450-56.

The ultimate teaching of our case law is that the police may not abuse their authority to conduct a warrantless search or seizure under a narrow exception to the warrant requirement when the reason for the search or seizure does not fall within the scope of the reason for the exception.

Ladson, 138 Wn.2d at 357.

¶14 Washington’s exception focuses on officer safety and prevention of destruction of evidence. Vrieling, 144 Wn. 2d at 494. “[B]ecause of [Washington’s] heightened privacy protection [under article I, section 7,] these exigencies [do not] always allow a search.” Stroud, 106 Wn.2d. at 151. As our Supreme Court explained in Stroud:

During the arrest process, including the time immediately subsequent to the suspect] ] being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant. The rationale for this is twofold. First, by locking the container, the individual has shown that he or she reasonably expects the contents to remain private. Second] ], the danger that the individual either could destroy or hide evidence located within the container or grab a weapon is minimized. The individual would have to spend time unlocking the container, during which time the officers have an opportunity to prevent the individual’s access to the contents of the container.

Stroud, 106 Wn.2d at 152 (citation omitted).

¶15 In addition to determining whether a search incident to arrest was properly limited to the area within the arrestee’s immediate control, United States v. Vasey, 834 F.2d 782, 786-87 (9th Cir. 1987), we must consider whether the search “ ‘[was] roughly contemporaneous with the arrest.’ ” United States v. Tank, 200 F.3d 627, 631 (9th Cir. 2000) (quoting United States v. Moorehead, 57 F.3d 875, *287878 (9th Cir. 1995). A contemporaneous warrantless search may be conducted shortly after the arrestee has been removed from the area. United States v. McLaughlin, 170 F.3d 889, 893 (9th Cir. 1999). The arrest and search should not be separated in time or by intervening acts. McLaughlin, 170 F.3d at 893. The actions following the arrest must be one continuous series of events closely connected in time. McLaughlin, 170 F.3d at 893. “At some point, a significant delay between the arrest and the search renders the search unreasonable because it is no longer contemporaneous with the arrest.” State v Smith, 119 Wn.2d 675, 683, 835 P.2d 1025 (1992).

¶16 Assuming, without deciding, that the searched area here was accessible from the passenger area without the vehicle occupants needing to leave the vehicle, even though they were both seated in the front seats of the three rows of seats, and, further, assuming that the search was timely, we address the key issue of whether the officers exceeded the scope of a proper search incident to Valdez’s arrest when they called for a drug-sniffing dog when (1) two officers were already on the scene, (2) both the driver and the passenger had been removed from the vehicle, and (3) the initial search of the vehicle was complete and did not reveal evidence of weapons or drugs. The State relies on State v. Boursaw, 94 Wn. App. 629, 976 P.2d 130 (1999), as blanket authority allowing officers to call for a K-9 search after a driver’s arrest and removal from the vehicle and following the initial vehicle search.

¶17 In Boursaw, the defendant was stopped for a traffic infraction and was arrested because he was driving with a suspended license. 94 Wn. App. at 630-31. The arresting officer handcuffed the defendant and placed him in the back of the patrol car. Boursaw, 94 Wn. App. at 631. When the officer searched the defendant’s car incident to arrest he “found plastic ziplock bags and several needles” in an unlocked glove box. Boursaw, 94 Wn. App. at 631. The officer then called for a K-9 unit that arrived at the scene within 10 minutes. Boursaw, 94 Wn. App. at 631. The dog *288alerted to an area under the front ashtray. Boursaw, 94 Wn. App. at 631. The officer removed the ashtray and discovered a plastic bag containing a substance that tested positive for methamphetamine. Boursaw, 94 Wn. App. at 631. Division One of this court upheld the search, holding that the delay was reasonable and “the area immediately behind the ashtray is within the reach of the occupants of the automobile.” Boursaw, 94 Wn. App. at 636. But Boursaw turned “on what constitutes activities related to ‘the securing of the suspect and the scene,’ and at what point is the scene sufficiently secured.” 94 Wn. App. at 634 (quoting Smith, 119 Wn.2d at 684). Moreover, Division One limited Boursaw “to the facts of this case.” 94 Wn. App. at 635. And the original search of the vehicle in Boursaw revealed evidence of illegal drug possession. Boursaw, 94 Wn. App. at 631.

¶18 “Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched.” Maddox, 152 Wn.2d at 505. In Boursaw, the officers had, in addition to a brief interlude between the arresting officer finding drug paraphernalia and the K-9 search of the front passenger area, probable cause that evidence of illegal activity could be found in the vehicle.

¶19 Here, the State argues that the K-9 search was justified because (1) the driver had been arrested; (2) “the dashboard was missing screws and plastic fasteners, and that it had appeared to be tampered with,” Report of Proceedings at 18; and (3) Valdez inconsistently told the officer that he had just come from Fourth Plain1 and from Las Vegas, Nevada.2 In addition, the officer knew that a headlight was out on the minivan.

¶20 But before Dennison called for a K-9 unit, he had placed Valdez in the patrol car; there was another officer on the scene; and he had completed his search of the passenger *289compartment of the vehicle for weapons or destructible evidence. Unlike the officer in Boursaw, he found no weapons, destructible evidence, or evidence of drugs or illegal activity other than loose plastic paneling under the dash. At that point, concerns about officer safety and destruction of evidence did not provide ongoing exigent circumstances allowing another warrantless search. Vrieling, 144 Wn.2d at 494; see Stroud, 106 Wn.2d at 152.

¶21 Furthermore, it was not until the drug dog alerted while searching the vehicle that probable cause existed to search for the presence of a controlled substance. “Generally, an ‘alert’ by a trained dog is sufficient to establish probable cause for the presence of a controlled substance.” State v. Jackson, 82 Wn. App. 594, 606, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997). But here, the drug dog alerted during a second search following Dennison’s initial search after both the driver and passenger were removed from the vehicle, the scene had been secured by two officers, and the initial search revealed only missing screws and loose front seat-area paneling.

¶22 The officers could have applied for a warrant to conduct a second search of the vehicle based on the facts the State relies on to justify the K-9 search after Valdez’s arrest and the impoundment of the vehicle. See State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980) (holding that a motor vehicle may be impounded if there is probable cause to believe that it was used in the commission of a felony). But the record before us does not show probable cause sufficient to warrant a second search for drugs based on the presence of loose paneling and screws and a perceived inconsistent statement about the origin of Valdez and Ruiz’s travels. Without the K-9 unit’s alert, the officers would not have removed the cup holder and insulation, revealing the presence of drugs. Although it turned out that the officer’s suspicion was justified, it was not proper under these circumstances to commence an independent second search, focused solely on the presence of illegal substances, by calling in a K-9 unit without some evidence of the presence of drugs.

*290¶23 The dissent would remove Washington’s greater protection of an individual’s right to be free of warrantless searches and adopt the United States Supreme Court’s broad investiture of police power to thoroughly search a vehicle without evidence of a crime following the driver’s arrest. See Stroud, 106 Wn.2d at 147; Belton, 453 U. S. at 460. The dissent’s focus ignores the legal basis of allowing warrantless searches of unlocked items in a vehicle, i.e., the destruction of evidence and officer safety. The dissent argues that even if there is no concern on either issue — when the driver is handcuffed and in a patrol car, there is another officer on the scene, and there is loose paneling and no other evidence of a crime being committed — the police may rely on their experience that some drug couriers put drugs behind car paneling in order to justify a K-9 unit search of the vehicle. This erosion of protections afforded by our Washington Constitution against warrantless searches is not dictated by Smith or Boursaw, and we refuse to abandon those protections in favor of the federal rule.3

II. Corpus Delicti

¶24 Ruiz argues that if the methamphetamine is suppressed, the only evidence that he possessed the methamphetamine with the intent to distribute was his confession. We agree that under Washington’s corpus delicti rule, Ruiz’s confession, standing alone, was insufficient evidence for conviction.

¶25 “Washington’s version of the corpus delicti rule requires that the State produce evidence, independent of the accused’s statements, sufficient to support a finding that the charged crime was committed by someone.” State v. Bernal, 109 Wn. App. 150, 152, 33 P.3d 1106 (2001), review denied, 146 Wn.2d 1010 (2002). “A confession or admission, standing alone, is insufficient to establish the corpus delicti *291of a crime.” State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995).

¶26 We reverse and remand with instructions to suppress the seized evidence.

Houghton, C.J., concurs.

We take judicial notice that Fourth Plain is a street in Vancouver, Washington.

The appellants began their trip in Las Vegas.

Ruiz contends that the use of the K-9 unit was overly intrusive. Because we find that the search was an impermissible second warrantless search, it is unnecessary to address this issue or other issues Ruiz raises, other than to briefly address Ruiz’s assertion that absent the illegally seized evidence, his statements cannot be used to support his conviction.