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Washington Appeals Court Vacates Conviction Based on Search of Sleeping Man

Washington drug cases often turn on the legality of the search that found the evidence.  Both the federal and Washington state constitutions provide protection from unreasonable searches and seizures.  Generally, searches must be conducted under a lawful warrant, unless an exception applies.  A man recently successfully challenged his conviction on the grounds the trial court erred in applying the Terry and community care taking exceptions to the search that found the evidence used against him.

A Starbucks employee called 911 for assistance removing a sleeping person from the store.  According to the court’s opinion, the officer tried to wake the defendant, but he was unresponsive.  The officer started to suspect the defendant was under the influence of drugs.  He noticed a metal utensil partially sticking out of the defendant’s pocket.  He was concerned it was a knife, needle, or other sharp object.  He took it out of the defendant’s pocket and found it was a cook spoon with a dark brown residue and burn marks.  The officer determined he had probable cause for an arrest and kept searching, finding drugs and other drug paraphernalia.

The officer then performed a “hard sternum rub” to wake the defendant.  He told the defendant he was under arrest, handcuffed him, and took him to an aid car.

The defendant moved to suppress the evidence from the search.  The trial court denied the motion, finding the officer was authorized to take necessary actions to protect himself and others pursuant to Terry and community care taking.  The defendant was found guilty of unlawful possession of a controlled substance and sentenced to 30 days confinement.  He appealed.

The defendant argued the search was not permissible under Terry because there was no reasonable suspicion he was engaged in criminal activity and no specific and articulable reason to believe he was armed and dangerous.  He also argued, alternatively, that the officer exceeded the scope of a frisk under Terry.

The state conceded that the search was not authorized by Terry because the officer did not testify he was engaged in a criminal trespass investigation. The record did not contain any evidence Starbucks had trespassed the defendant. The appeals court also noted there was no evidence that the defendant’s sleeping caused a reasonable safety concern.  Although the officer said he was afraid the defendant would react violently to the hard sternum rub, he did not ask the nearby customers to move away. The court found the officer’s actions did not support his stated fears.

The appeals court also found the officer’s search exceeded the scope of a Terry frisk.  Terry allows an officer to conduct a limited pat-down for weapons that may injure him.  The officer did not pat down the object in the defendant’s pocket, but instead removed it.  The appeals court noted that a pat-down would have revealed the object was not sharp.  Taking it from the defendant’s pocket without a pat-down was beyond the scope of a Terry frisk.

The defendant also argued the court erred in applying the community care taking exception.  A community care taking exception applies only where the officer’s actions are completely divorced from investigating criminal activity.  The court must consider whether the community care taking exception has been used as a pretext.  If it was not, then the court must balance the defendant’s privacy interests against the public’s interest to determine if the search was reasonable.  The community care taking exception applies where the officer believed there was an emergency requiring him to provide immediate assistance, a reasonable person would believe the assistance was needed, and there is a reasonable basis for associating the need for assistance with the place searched.  If, after considering this test, the court finds the search did fall within the emergency aid function, then the court must weigh the defendant’s privacy interest against the public interest.

The appeals court found removal of the spoon from the defendant’s pocket was unreasonable under this balancing test.  Evidence in the record did not support a finding the officer was conducting a routine health and safety check or rendering emergency aid.  According to the officer, he was dispatched to help with “an individual they wanted to leave, who was sleeping.”  There was no evidence the officer was dispatched to render emergency aid.  The officer testified the defendant was breathing.  The defendant woke up after the officer performed a light sternum rub, but went back to sleep without communicating.  The officer did not perform any life-saving measures, and there was nothing indicating the other customers expressed any concern that the defendant was in danger.  The appeals court found the officer did not subjectively think there was an emergency and that a reasonable person in his position would not have believed there was a need for emergency assistance.

The appeals court found that even if a community care taking exception applied, a pat-down would again have been sufficient. Removing the spoon was a violation of the defendant’s rights to freedom from unreasonable searches and seizures.

The appeals court vacated the conviction and remanded.

An experienced Washington criminal defense attorney can identify and attack any flaws in a search.  If you have been charged with a drug-related crime, call Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.

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