State v. Shoemaker

Petrich, J.

The State of Washington has appealed the order of the trial court suppressing evidence seized during a warrantless search of defendant's automobile. The issue on appeal is whether the scope of the warrantless search extended to closed suitcases located in the trunk of the vehicle. We hold that it did not and affirm the order of suppression.

At approximately 5 p.m. on July 11, 1979, a confidential informant told Deputy Reese of the Clark County Sheriff's Department that at 6 p.m. that day Claude Shoemaker, the defendant herein, would deliver 25 pounds of marijuana to the Bull Run Tavern in rural Clark County. The informant described the defendant and the vehicle he would be driv*789ing but did not indicate where the marijuana would be located in the vehicle or how it would be packaged. The informant also admitted to criminal involvement with defendant within the preceding 72 hours. Defendant was known to local law enforcement officers as a narcotics dealer and was currently the subject of an investigation.

In response to this information Deputy Reese dispatched several deputies to the area and traveled to the tavern with the informant. Shortly after 5:30 p.m. defendant drove up in a vehicle matching the informant's description and was identified by the informant. One of the deputies stopped the vehicle and began to search it. After conducting a cursory search of the vehicle's interior, the deputy took the keys, opened the trunk and saw two suitcases. The officers opened both suitcases at the scene without a warrant and found a large quantity of marijuana inside. Defendant was then taken into custody and his vehicle impounded.

An omnibus hearing was held to determine whether the deputies had probable cause to conduct a warrantless search of defendant's automobile and whether such a search could extend to the closed suitcases found in the trunk. At the conclusion of the omnibus hearing, the trial court found that Deputy Reese did not have sufficient time to obtain a search warrant and concluded that the officers had probable cause to search the vehicle without a warrant based upon their verification of the informant's description of defendant, his vehicle and his direction of travel. The court also made a finding that the deputies had no prior information indicating that the marijuana might be in the suitcases which were eventually searched, only that marijuana would be located somewhere in the vehicle. The court concluded, however, that, even though the deputies had probable cause to conduct a warrantless search of the vehicle, they could not extend the search to the closed suitcases under the rule of Arkansas u. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979). Accordingly, it ordered the contraband suppressed.

The State has appealed the order of suppression, and the *790defendant has perfected a cross appeal from the court's conclusion that the officers had probable cause to conduct the warrantless search, claiming there was no showing of informant's reliability.

Because of our decision affirming the trial court's ruling, it is not necessary to address defendant's cross appeal.

The State contends the trial court erred in concluding that the scope of the warrantless search could not extend to closed suitcases under the rule of Arkansas v. Sanders, supra. The State bases its argument on a factual distinction between Sanders and the present case. In Sanders police had probable cause to believe that contraband was contained in a specific suitcase which police agents observed defendant place in the trunk of a vehicle. Police stopped the vehicle, opened the trunk and searched the suitcase which was found to contain contraband. The Supreme Court held the warrantless search of the suitcase to be invalid. The court reasoned that, as police had probable cause to believe that the suitcase contained contraband, they were obliged to seize it and did in fact remove it from defendant's control. With the exigent circumstance of mobility then removed, the court held that police must first obtain a warrant before they could search the suitcase. Arkansas v. Sanders, 442 U.S. at 763, 61 L. Ed. 2d at 244-46. The State argues that in the present case the deputies did not have probable cause to believe that the contraband was contained in a specific suitcase, only that it was located somewhere in the vehicle. Therefore, they should have been able to search the vehicle and its contents thoroughly without a warrant as part of the automobile exception set forth in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970) and Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790 (1925). We disagree.

The Fourth Amendment normally requires that police first obtain a warrant before they search private property. Arkansas v. Sanders, 442 U.S. at 758, 61 L. Ed. 2d at 241. Exceptions to the warrant requirement are to be *791drawn carefully and interpreted jealously^ with the burden placed on the party asserting the exception. Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507 (1967). Accord, Arkansas v. Sanders, 442 U.S. at 759, 61 L. Ed. 2d at 242. The warrantless search of automobiles is recognized as an exception to the warrant requirement when police have probable cause to believe that the vehicle contains contraband, stolen goods or other evidence of a crime and the exigent circumstance of mobility is present which makes obtaining a warrant impractical. Chambers v. Maroney, 399 U.S. at 48-49, 21 L. Ed. 2d at 426-27; Carroll v. United States, 267 U.S. at 156, 69 L. Ed. at 552-53. Also inherent in cases allowing the warrantless search of automobiles is the notion that a lesser expectation of privacy exists in regard to automobile interiors than for homes or other personal property. See Arkansas v. Sanders, 442 U.S. at 761, 61 L. Ed. 2d at 243. See also South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). However, the Supreme Court recently cautioned that the automobile is not a "talisman" in whose presence the protections of the Fourth Amendment disappear; instead, the State still has the burden to demonstrate that exigent circumstances are present before a warrantless search of a vehicle and its contents may be justified. Arkansas v. Sanders, 442 U.S. at 761 n.7, 61 L. Ed. 2d at 243.

In the present case the deputies had probable cause to believe that defendant's vehicle contained contraband which justified their action in stopping the car and conducting a warrantless search of the vehicle's interior. However, after this search did not disclose any contraband and the trunk was opened displaying the suitcases, the officers then had probable cause to believe that the 25 pounds of contraband were contained in these suitcases. This would justify their action in seizing these containers and holding them until a search warrant could be obtained to open them, removing the exigent circumstances of mobility. Once the exigent circumstance of mobility is removed and the *792personal property is seized and within the control of law enforcement officers, a warrant must be obtained to search it. Arkansas v. Sanders, 442 U.S. at 762, 61 L. Ed. 2d at 244. This is consistent with the court's earlier decision in United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977), in which it held that personal luggage is not subject to less protection just because it has been deposited in an automobile, and that the automobile exception does not justify a warrantless search of the contents of personal luggage after it is in the control of police.

We hold the deputies had probable cause to believe that the two suitcases contained contraband once they had conducted a limited search of the vehicle's interior which failed to disclose the contraband and then discovered the presence of the two suitcases in the trunk. When coupled with the information received from the informant that a large quantity of marijuana was located somewhere in the vehicle, the initial discovery of these two suitcases would lead a reasonable law enforcement officer to believe that they may well contain contraband. This in turn gave the deputies probable cause to seize the suitcases and to remove them from defendant's control. With the exigent circumstance of mobility removed, the officers were then required to obtain a search warrant before they could search the contents of the suitcases. See State v. Marcum, 24 Wn. App. 441, 449-51, 601 P.2d 975 (1979). See also State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979).

The State argues that, if this interpretation is adopted, police will be required to eliminate all possible hiding places in a vehicle and to seize all containers which could be repositories for contraband. This, the State argues, would result in a much greater intrusion upon Fourth Amendment rights than would result if police were allowed to search personal luggage as part of the automobile exception to the warrant requirement. We disagree. Implicit in the language of the Fourth Amendment is that a neutral *793magistrate be imposed between the police and the citizenry by the warrant requirement. Katz v. United States, 389 U.S. at 356, 19 L. Ed. 2d at 585. Inherent in the warrant requirement is the possibility that law enforcement officers may have to seize items which they have probable cause to detain in order to obtain a search warrant before examining the object. As such, the seizure of an item of personal property in order to fulfill the warrant requirement must be deemed a lesser intrusion than the warrantless search of the same object. Note, United States v. Chadwick and the Lesser Intrusion Concept, 58 B.U. L. Rev. 436 (1978). See also United States v. Chadwick, 433 U.S. at 13, 53 L. Ed. 2d at 550. This view was reinforced by the Supreme Court's decision in Sanders which restated the principle that exceptions to the general requirement of a warrant are to be construed narrowly. Arkansas v. Sanders, 442 U.S. at 760-61, 61 L. Ed. 2d at 242-43.

We hold, therefore, that the trial court was correct in concluding that the warrantless search of defendant's automobile could not extend to the closed suitcases located in the trunk of the vehicle. The order of suppression is affirmed.

Pearson, J., concurs.