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State v. Alexander

Court of Appeals of Washington, Division 1

October 7, 2019

STATE OF WASHINGTON, Respondent,
v.
HEATHER ANNE ALEXANDER, Appellant.

          Smith, J.

         Heather Anne Alexander appeals her conviction for possession of a controlled substance. She argues that the trial court erred by not suppressing evidence found during a warrantless search of a backpack that was sitting behind her at the time of her arrest. Because the State failed to establish that Alexander had actual and exclusive possession of the backpack at or immediately preceding her arrest, we agree and reverse.

         FACTS

         On July 15, 2017, Officer Troy Moss of the Everett Police Department responded to a trespass report at 901 West Casino Road in Everett. There, he observed a man and a woman, later identified as Delane Slater and Heather Alexander, sitting in an undeveloped field marked with "no trespass" signs. Officer Moss identified himself as law enforcement at some distance and observed Slater and Alexander manipulating some unknown items on the ground. Officer Moss approached Slater and Alexander, who remained seated by a log approximately three or four feet apart from each other.

         Officer Moss informed Slater and Alexander that they were trespassing and obtained their identification. When Officer Moss conducted a records check on Alexander, he learned that she had an active Department of Corrections (DOC) warrant. A records check on Slater yielded no results.

         While interacting with Alexander, Officer Moss observed a pink backpack sitting directly behind Alexander. The backpack was close enough to Alexander that it appeared to be touching her back. When Officer Moss asked Alexander whether the backpack belonged to her, she indicated that it did.

         Officer Moss confirmed the DOC warrant and placed Alexander under arrest. At this point, Officer Moss did not believe that he had probable cause for any other offense. Because Alexander was being arrested, Slater offered to take Alexander's backpack with him. Alexander indicated to Officer Moss that it was her desire for Slater to take the backpack. Officer Moss informed Slater that Alexander's personal property would be searched incident to arrest and that it would remain with her at that time. He asked Slater to leave the scene and indicated that "Slater did not do anything to cause [Officer Moss] safety concern." Slater left without incident.

         Officer Moss took Alexander into custody and walked Alexander and her backpack to his patrol vehicle. Alexander was cooperative throughout this course of action. Officer Moss seated Alexander in his patrol vehicle and placed her backpack on top of the trunk. He then searched the backpack and located items containing what he believed to be a controlled substance. Officer Moss informed Alexander that he was additionally arresting her for possession of a controlled substance and advised her of her Miranda[1] rights.

         The State charged Alexander with possession of a controlled substance, committed while on community custody. Prior to trial, Alexander moved to suppress the evidence found during Officer Moss's warrantless search of her backpack, arguing that the search did not fall within any valid exception to the warrant requirement. The trial court denied Alexander's motion and entered findings of fact and conclusions of law. A jury later found Alexander guilty as charged. Alexander appeals.

         ANALYSIS

         Alexander argues that the warrantless search of her backpack was not a valid search incident to arrest, and thus the trial court erred by not suppressing the fruits of that search. Because the search was not a valid search of Alexander's person incident to arrest and the State does not argue that any other warrant exception applies, we agree.

         Standard of Review

         When reviewing the denial of a suppression motion, this court ordinarily "determines whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law." State v. Garvin. 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). But here, Alexander does not challenge any of the trial court's findings of fact. Accordingly, they are verities on appeal, and the sole issue before this court is whether the trial court's findings support its conclusions of law. State v. Acrey. 148 Wn.2d 738, 745, ...


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