Appeal from Yakima Superior Court. Docket No: 10-1-01645-2. Judge signing: Honorable David A Elofson. Judgment or order under review. Date filed: 07/12/2013.
Kristina M. Nichols (of Nichols Law Firm PLLC ), for appellant.
Joseph A. Brusic, Prosecuting Attorney, and David B. Trefry, Deputy, for respondent.
Authored by George B. Fearing. Concurring: Laurel H. Siddoway. Dissenting: Kevin M. Korsmo.
[187 Wn.App. 657] George
B. Fearing, J.
¶ 1 We address the legality of a law enforcement officer's search of a zipped shaving kit bag found on the seat of a truck. The officer had arrested the truck's driver because the truck was stolen. The driver informed the officer of methamphetamine being on the seat, but did not consent to a search of his bag. Despite the triviality of the circumstances, this appeal concerns a critical issue surrounding Washington's constitutional prohibition against law enforcement disturbing private affairs " without authority of law." Despite the banality of the facts, this appeal raises a fundamental question concerning whether Washington State will be a police state, in which law enforcement officers employ their own discretion when determining to search property, or a state under the rule of law with magistrates prejudging the validity of police searches. Defendant Heath Wisdom, the driver of the stolen truck, moved the [187 Wn.App. 658] trial court to suppress as evidence the cornucopia of pharmacopeia found in the shaving kit as fruit of an unlawful warrantless search. The trial court denied the motion and found Wisdom guilty of one count each of possession of cocaine, ecstasy, and heroin, and one count of possession with intent to deliver methamphetamine. We reverse.
¶ 2 Heath Wisdom drove, near Moxee, a Chevrolet pickup truck with an ATV in its back. Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy Nate Boyer, while on patrol, passed the pickup, and Boyer's automated license plate reader identified the pickup as stolen. Deputy Boyer pulled Wisdom over and arrested him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body, and escorted him to the patrol vehicle. Boyer found on Wisdom's body a pipe that Wisdom admitted he used for smoking methamphetamine.
¶ 3 Deputy Nate Boyer advised Heath Wisdom of his Miranda rights, which the latter waived. Boyer asked if there were drugs in the truck, and Wisdom replied that methamphetamine lay on the front seat. Boyer looked inside the cab of the truck and saw filters, some cleaner, and a black " shaving kit type" bag. Clerk's Papers (CP) at 24. Boyer concluded that the bag contained the methamphetamine. The toiletry bag was closed, but Boyer espied money through the mesh side of the bag. We do not know if an additional lining partitioned the money inside the mesh from the remaining contents of the bag.
¶ 4 After photographing the truck, Deputy Boyer removed the bag from the vehicle, opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he owned the black bag. Deputy Boyer had not asked Wisdom if he owned the black bag before searching inside the bag.
[187 Wn.App. 659] ¶ 5 Deputy Boyer never obtained a warrant for his search, nor did he request Heath Wisdom's consent before opening the black bag. Law enforcement impounded the truck and ATV, since the legal owner could not be located.
¶ 6 The State of Washington charged Heath Wisdom with three counts of possession of a controlled substance in violation of RCW 69.50.4013(1) (cocaine, ecstasy, and heroin) and one count of possession of a controlled substance with intent to deliver under RCW 69.50.401(1) (methamphetamine). Wisdom moved under CrR 3.6 to suppress all evidence found in the black toiletry bag. Wisdom argued: (1) Deputy Boyer's warrantless search of the truck and the bag did not fall within the exceptions allowing a search incident to arrest, (2) Boyer's " inventory search" of the black bag was actually an investigatory search for evidence of a crime, and (3) Wisdom's concession that there was methamphetamine in the truck was not consent to search the vehicle or the bag. The State responded that: (1) the impound and search of the vehicle was lawful, and (2) the search of the black bag was a lawful inventory search. The State conceded that Wisdom's statement to Boyer did not amount to an implied consent to search.
¶ 7 At the suppression hearing, Deputy Nate Boyer testified that he opened and searched the black bag pursuant to department policy and in order to protect against potential liability claims for loss of property:
[PROSECUTOR]: Ok. What else did you do?
BOYER: I took custody of a black bag. Which was seated on the passenger side of the vehicle.
BOYER: It obviously contained a large amount of money. Which was clearly visible from the outside of the vehicle looking in. And Mr. Wisdom had previously stated that there was a large amount of methamphetamine in the vehicle.
[187 Wn.App. 660] [PROSECUTOR]: Is this type ... let me back up. What did you? What was your purpose for seizing that black bag?
BOYER: It appeared to be an item of high value. Which any time there is something of high value it's never left in an impounded vehicle. It's placed into property and then claimed by the rightful owner ... [; ] it also appeared to be a narcotic sales type bag. Which contained a large amount of drugs.
[PROSECUTOR]: Is this any different from a regular inventory search?
BOYER: No, it is not.
[PROSECUTOR]: Could you see anything else from the outside of the black bag?
BOYER: I could see that there was a large amount of money in the side of the bag. It appeared to be bindles [sic] of money stacked individually. And then also checks could also be seen. Based on the amount of money I could see, it was apparent that there was a large sum of money there.
Report of Proceedings (RP) at 8-9 (fourth alteration in original).
¶ 8 On cross-examination, Deputy Boyer admitted that he suspected the black bag contained drugs, but he did not obtain a warrant prior to opening and searching the bag:
[DEFENSE COUNSEL]: Ok. Now you called this an inventory search. Is that correct?
[DEFENSE COUNSEL]: Ok. Let me ask you this. You didn't have a warrant?
BOYER: No, I did not.
[DEFENSE COUNSEL]: You did not call for a telephonic warrant. Is that correct?
BOYER: That's correct.
[DEFENSE COUNSEL]: You know how to call for a telephonic warrant?
BOYER: Yes I do.
[DEFENSE COUNSEL]: Ok. Was there anything preventing you from calling for a telephonic warrant?
[187 Wn.App. 661] BOYER: No, there was not.
[DEFENSE COUNSEL]: Ok. And my client did not give you consent to search that vehicle. Is that correct?
BOYER: I did not ask his consent. No.
BOYER: When asked if there was any meth in the vehicle, Wisdom told me there was quite a bit of meth in the truck.
[DEFENSE COUNSEL]: And then the next sentence please.
BOYER: Wisdom told me it was sitting on the seat of the truck.
[DEFENSE COUNSEL]: And that bag had ... the only thing you could see visible on that bag was the money and the checks that you previously described?
[DEFENSE COUNSEL]: Ok. And then you went in to the truck and you removed ... at some point you went into the truck and you removed that bag?
[DEFENSE COUNSEL]: Ok. And you opened that bag and you discovered, per your report; approximately an ounce of methamphetamine, ...