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Washington v. Feller

March 14, 1991

THE STATE OF WASHINGTON, APPELLANT
v.
PATRICK N. FELLER, RESPONDENT



Green, C.j. Munson and Shields, JJ., concur.

Author: Green

The State of Washington appeals the suppression of marijuana obtained in a search incident to the arrest of Patrick N. Feller for driving without a valid operator's license. The State contends the search was justified as incident to a custodial arrest, as a protective search for weapons, or on the basis of inevitable discovery. We affirm.

At 2 p.m. on April 24, 1989, Trooper John Berends saw a red Chevette traveling eastbound on Nob Hill Boulevard in Yakima. The car had a cracked windshield, no gas cap and its driver failed to signal a lane change. When the trooper stopped the car and asked Mr. Feller for his license and registration, he replied he did not have a license and had left his registration at home. Mr. Feller, however, provided the trooper with identification.

The trooper told Mr. Feller he was under arrest for failure to have an operator's license. During a pat-down search for weapons, the trooper found a 3- or 4-inch pipe and a plastic bag containing what appeared to be marijuana in Mr. Feller's right front pants pocket. The trooper placed Mr. Feller in his patrol car and searched his car for weapons. Behind the driver's seat he found a brown paper bag containing three plastic baggies of what appeared to be marijuana. At 2:06 p.m., a registration check showed the car was registered to someone else and that Mr. Feller had failed to appear on two previous citations. At 2:07 p.m., the trooper read Mr. Feller his Miranda rights. He was subsequently charged with possession of a controlled substance with intent to deliver.

Mr. Feller moved to suppress the marijuana on the basis the trooper did not have authority to arrest and search him. At the hearing, the trooper testified to the above facts. In addition, he testified that had he not discovered contraband, his decision to issue a citation or take Mr. Feller into custody would have depended on the result of the registration check. The court granted the motion to suppress on the basis the circumstances presented did not justify a custodial arrest. This appeal follows.

First, the State contends the evidence was properly seized as a search incident to arrest.

Driving without a valid driver's license is a misdemeanor under RCW 46.20.021. RCW 46.64.015, the statute governing arrest procedures for violation of traffic laws, states in part:

Whenever any person is arrested for any violation of the traffic laws or regulations which is punishable as a misdemeanor or by imposition of a fine, the arresting officer may serve upon him or her a traffic citation and notice to appear in court. . . . The detention arising from an arrest . . . may not be for a period of time longer than is reasonably necessary . . . except . . .:

(1) Where the arrested person refuses to sign a written promise to appear . . .;

(2) Where the arresting officer has probable cause to believe that the arrested person has committed any of the offenses enumerated in RCW 10.31.100(3) . . .;*fn1

[1] State v. Hehman, 90 Wash. 2d 45, 47, 50, 578 P.2d 527 (1978) held absent other reasonable grounds for arrest, a custodial arrest for a minor traffic violation is unjustified, unwarranted, and impermissible if the defendant signs the promise to appear contained in the citation. A number of decisions have interpreted Hehman with varying results. See State v. McIntosh, 42 Wash. App. 579, 712 P.2d 323 (arrest for driving without a driver's license upheld on the basis of unsatisfactory identification, lack of vehicle ownership and suspicious account of activity), review denied, 105 Wash. 2d 1015 (1986); State v. LaTourette, 49 Wash. App. 119, 741 P.2d 1033 (1987) (arrest for reckless driving upheld on the basis the offense was a misdemeanor -- expired license tabs and group of hostile onlookers encouraged defendant to flee), review denied, 109 ...


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