Washington Driver Can’t Consent to Search of Passenger’s Backpacks

Evidence obtained through an unlawful search is generally inadmissible in a Washington criminal case.  Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution offer protections against unlawful searches.  The Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” Article I, Section 7.  This section in some circumstances provides greater privacy protections than the Fourth Amendment.

A defendant recently challenged a search of his backpacks that were inside a vehicle.  The appeals court’s opinion states the defendant was a passenger in a vehicle during a traffic stop for suspicion of suspended license.  The officer recognized the defendant as having an outstanding warrant.  The officer ordered him to remain seated, but the defendant got out of the car and subsequently fled. The officer caught him and searched his pockets.  He found a pipe, cash, and a small amount of what he thought was heroin.

The driver told the officer the defendant asked her to stop at a gas station when the patrol car was following them.  She said he moved some bags to the back seat.  She pointed out two backpacks on the rear floorboard and another on the passenger side floorboard.  She gave permission to search the car “without limitation.”

In the backpacks, the officer found an insurance card with the defendant’s name, a bag with suspected narcotics, and other items.

The officer gave the defendant his Miranda rights.  The defendant admitted the drugs were his. Testing determined there were 86.9 grams of methamphetamine and 3.8 grams of heroin in the backpacks.

The defendant was charged with two counts of possession of a controlled substance with intent to deliver.  He moved to suppress the contents of the backpacks and his statements. He argued the officer had unlawfully extended the traffic stop and that the search was not a lawful search incident to arrest.  The state argued the defendant’s own actions expanded the stop into a drug investigation and the driver had given consent for the search.

The trial court concluded the traffic stop was extended because the defendant fled.  The trial court also concluded the search was permitted because the driver had consented to a search of the vehicle.  The defendant was convicted of the charges.

The defendant appealed, arguing the driver’s consent to search the car did not include his backpacks.  The state argued the consent did apply and that the defendant abandoned the bags when he fled.

Bags and closed containers have heightened protection under Washington case law.  The appeals court cited a recent case concluding a motel room occupant could not consent to the search of someone else’s grocery bags and another concluding a driver’s consent to a search of the trunk did not reach the locked safe inside it.

The appeals court concluded the driver’s consent to search did not reach the defendant’s backpacks.  The defendant had not given express consent to search his backpacks, and there was nothing in the record indicating he had given implied consent.  The backpacks were “closed containers” and the defendant had an expectation of privacy in them under the Washington state constitution.  Additionally, the officer was aware they did not belong to driver. The officer had to obtain either the defendant’s consent or a warrant.

The appeals court also considered whether the backpacks constituted abandoned property.  Abandoned property may be searched without implicating the individual’s rights under either the U.S. or state constitutions.  Property is voluntarily abandoned when the person relinquishes their reasonable expectation of privacy when leaving it.

The court considers whether the defendant has a privacy interest where the item was left.  Washington courts have concluded property was not abandoned when left inside the person’s car or home, even if the person denies owning the item.  Property has been considered abandoned when left on the ground under a vehicle or inside a stolen vehicle.  Courts also consider whether the defendant intended to retrieve the item.

The appeals court noted the defendant had not left his bags in a stolen car or outside, but in a car he was in with the permission of the driver.  The defendant, who did not have housing, left the bags with someone he knew.  He never denied ownership of the bags.  He moved two of them to the back floorboard and tried to put the other under the driver’s seat.  The appeals court stated these circumstances pointed to the conclusion he meant to safeguard them until he could retrieve them.

The majority opinion noted the dissent was focused on the defendant’s attempt to flee.  Case law, however, requires the appeals court to focus on the location of the item and whether the defendant intended to retrieve it, rather than the defendant’s reason in leaving it.  The majority concluded that the defendant left the backpacks where he reasonably expected they would stay private and that the abandoned property exception to the warrant requirement did not apply.

The state also argued that the search did not violate the defendant’s rights because the officers would have done an inventory search of the backpacks if taken to jail with the defendant.  The inevitable discovery doctrine allows a court to admit evidence from an unconstitutional search if it would otherwise have been discovered.  The Washington Supreme Court held in State v. Winterstein, however, that this doctrine does not comply with the protections in Article 1, Section 7 of the state constitution.

The appeals court determined the defendant’s motion to suppress should have been granted and reversed the convictions and remanded.

If you have been charged with a crime based on evidence found in a search, a skilled Washington criminal defense attorney can fight to protect your constitutional rights.  Set up a consultation to discuss your case with Blair & Kim, PLLC by calling (206) 622-6562.


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