Superior Court County: Snohomish. Superior Court Cause No: 12-1-02531-7. Superior Court Judge Signing: Hon. Eric Lucas. Date filed in Superior Court: August 27, 2013.
Kevin A. March (of Nielsen Broman & Koch PLLC ), for appellant.
Mark K. Roe, Prosecuting Attorney, and John J. Juhl, Deputy, for respondent.
Written by: Judge Leach. Concurred by: Judge Schindler, Judge Appelwick.
[186 Wn.App. 151] ¶ 1 Stephen Lee VanNess appeals his conviction for possession of heroin and possession of methamphetamine with intent to deliver. He claims that a postarrest search of a locked box police found in his backpack violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. Because the State does not show that this search meets any exception to the warrant
requirements of [186 Wn.App. 152] these provisions, the search violated the state and federal constitutions. The police based a later request for a warrant to search the box solely on observations from this unconstitutional search. Thus, the controlled substances the State found when executing the warrant must be suppressed as fruits of the poisonous tree. Therefore, we do not reach the issues VanNess raises in his statement of additional grounds. We reverse and remand for proceedings consistent with this opinion.
¶ 2 On November 29, 2012, the Everett Police Department received a citizen report about seeing Stephen Lee VanNess. The dispatcher informed responding Officer Robert Edmonds that VanNess had warrants out for his arrest. Edmonds obtained a physical description, made contact with VanNess, and arrested him. When arrested, VanNess was wearing a backpack and carrying a bag. Edmonds removed the backpack. A second officer arrived. Edmonds handcuffed VanNess, walked him and his bags to the patrol car, and placed the backpack on top of the car trunk. A third officer arrived.
¶ 3 Edmonds asked VanNess for permission to search the backpack. VanNess did not respond. Everett Police Department had a policy requiring officers to search backpacks for dangerous items, adopted after an officer had failed to search a backpack and, after transporting it to the police station, discovered a pipe bomb inside. Following that policy, Edmonds searched VanNess's backpack. During the search, at least one officer stood near VanNess next to the right rear passenger door of Edmonds's patrol car. Edmonds found three knives attached to the exterior of the backpack and another inside. Edmonds then arrested VanNess for possessing these knives because their blade length made them dangerous weapons under the Everett Municipal Code.
[186 Wn.App. 153] ¶ 4 In VanNess's backpack Edmonds also found a box measuring six inches by four inches by two inches, locked with a three-number combination lock. Edmonds asked VanNess if he could search the locked box. Again, VanNess did not respond. When Edmonds asked if the box contained anything dangerous, VanNess continued his silence. In an earlier case, Officer Edmonds executed a warrant to search a vehicle and discovered a box of similar size that contained a dangerous handgun. Edmonds used a flathead screwdriver to pry open the box one-quarter to one-half inch. He looked inside and did not see any dangerous item but saw evidence of controlled substances. In his later affidavit of probable cause, he stated that he saw a scale and small plastic " baggies" and smelled ...