In a Washington criminal case, a warrantless search will be found to be unreasonable unless the state shows that a warrant exception applies. In a recent case, a defendant challenged her conviction based on evidence found during a warrantless search.
According to the court’s opinion, a police officer responding to a trespass report saw a woman and man sitting in a field that was posted with “no trespass signs.” After identifying himself, the officer saw the pair moving some objects on the ground. After getting their identification, he learned the woman had an active Department of Corrections warrant. He saw a pink backpack sitting behind the woman. He asked if it was hers, and she indicated it was.
The officer arrested the woman based on the active warrant. He offered to take the backpack, but she indicated she wanted the man to take it with him. The officer told the man the woman’s personal property would be searched incident to arrest and that it would stay with her. He asked the man to leave.
The officer put the woman in the back of his vehicle and searched the backpack. He found something he believed to be a controlled substance and arrested her for possession.
The woman was charged with possession of a controlled substance committed while on community custody. She moved to suppress the evidence found in the backpack. The trial court denied the motion and a jury found her guilty.
The defendant appealed, arguing the trial court erred by not suppressing the evidence. She argued the search was not a valid search incident to arrest. The appeals court noted there are two kinds of searches incident to arrest. One type of search incident to arrest is a search of the person, including certain personal effects closely associated with her, like a purse or backpack. A search of the person does not require justification if the arrest is valid. The second kind of search is a search of the “grab area,” or the area that is within the person’s immediate control. A “grab area” search must be justified by either officer safety or preservation of evidence.
The state did not argue the search was a valid grab area search, so the appeals court considered whether it constitute a valid search of the defendant’s person. For an item to be part of the person, the person must have had “actual and exclusive possession” right before or at the time of arrest.
In this case, the appeals court found there was no evidence the defendant was holding or wearing the backpack during her interaction with the officer. It was just sitting behind her. The defendant may have had constructive possession, but actual possession is necessary for the warrant exception to apply. Previous case law has held that items that are within a defendant’s reach that are not actually in her possession are not covered by the rule. The state has the burden of proving a warrant exception applies and the appeals court found the state failed to meet that burden.
The appeals court also noted that the reasoning for this exception to the warrant requirement is the presumptive safety and evidence preservation concerns related to police taking custody of the personal items that “will necessarily travel with the arrestee to jail.” The state did not prove that the backpack was in the defendant’s possession when she was arrested. The appeals court also noted that the man offered to take the backpack, and the defendant wanted him to do so. The backpack therefore did not “necessarily travel” with the officer to jail. He chose to take it.
The appeals court found the trial court erred in trying to expand a warrant exception that should be interpreted narrowly and reversed.
If you are facing drug charges, an experienced Washington criminal defense attorney can fight for you. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.