State v. Carney

¶1¶15 (concurring) — I concur with the majority’s result. However, I write separately to attempt to clarify an issue that many police officers must address: “When and for how long may a witness to a crime be detained to obtain evidence relating to that crime?”

¶2¶16 My view is that this officer’s show of authority prior to the records check—pulling behind the black car with emergency lights on and requesting identification— was a constitutional warrantless seizure. However, once the officer obtained Carney’s identification, the justification for her detention ended and she should not have been detained for a records check. Thus the evidence seized as a result of the records check should be suppressed.

¶3¶17 Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” A warrantless seizure is considered per se unreasonable unless it falls within one of the few exceptions to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). When analyzing police-citizen interactions, we must first determine whether a warrantless seizure occurred. State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003).

¶4¶18 A seizure occurs when, considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe that she is free to leave or decline a request due to an officer’s use of force or display of authority. O’Neill, 148 Wn.2d at 574; see State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). The test is purely an objective one, looking to the actions of the law enforcement officer. State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998).

¶5f 19 Here, Deputy Kendall pulled up behind the sedan with emergency lights flashing, approached the vehicle, commanded the women to show their hands, and then *206asked for their identification. Objectively, these actions restrained Carney’s freedom of movement and convinced her that she was not free to leave. Thus, a warrantless seizure did occur.

¶6¶20 Generally, warrantless searches and seizures are per se unreasonable. State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). Nonetheless, there are a few “ ‘jealously and carefully drawn’ exceptions” to the warrant requirement, which “ ‘provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.’ ” Houser, 95 Wn.2d at 149 (internal quotation marks omitted) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)). The Washington Supreme Court has set out five separate circumstances which could be “exigent”—(1) hot pursuit, (2) fleeing suspect, (3) danger to arresting officer or to the public, (4) mobility of the vehicle, and (5) mobility or destruction of the evidence. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983) (citing United States v. Kreimes, 649 F.2d 1185, 1192 (5th Cir. 1981)).

¶7¶21 Here, Deputy Kendall had information from dispatch and from his own observation that the motorcycle driver was driving recklessly and endangering the public.4 However, he did not effect a seizure of the motorcyclist, in which case all five of the exigent circumstances above would have applied. Instead, he chose to detain the two women in the vehicle, whom he believed had information regarding the identity of the reckless driver.

¶8¶22 Several courts have adopted a slightly different definition of “exigent circumstances” where the officer is detaining a witness, rather than a suspect. “[A]n officer may detain a witness only when: a serious crime occurred *207recently; the officer reasonably believes that the witness’s information will materially assist in the investigation; and the detention is necessary.” City of Kodiak v. Samaniego, 83 P.3d 1077, 1083 (Alaska 2004). Clarifying the “serious crime” requirement, the Alaska Supreme Court noted with approval language from the Model Code: “‘[t]he officer [must have] reasonable cause to believe that a misdemeanor or felony, involving danger or forcible injury to persons or of appropriation of or danger to property, has just been committed.’ ” Samaniego, 83 P.3d at 1083-84 (some alterations in original) (quoting Am. Law Inst., A Model Code of Pre-Arraignment Procedure § 110.0(l)(b) (1975)). If the officer has reasonable cause to believe that a witness has knowledge material to his investigation, he may take “such action [as] is reasonably necessary to obtain or verify the identification of [the witness].” Samaniego, 83 P.3d at 1084 (quoting Am. Law Inst., A Model Code of Pre-Arraignment Procedure § 110.0(l)(b)).

¶9¶23 Here, the motorcyclist’s reckless driving posed a danger of injury to persons or property in the area. Therefore, Deputy Kendall’s actions were reasonable insofar as they were necessary to obtain or verify the identification of witnesses to the crime. Because the women were in an apparently mobile car, he risked losing them (and their possible evidence) if he did not make a show of force to convince them to stay where they were. In turning on his emergency lights and approaching the vehicle, he took reasonable actions in order to preserve evidence and question the witnesses.

¶10¶24 However, once Deputy Kendall had the women’s names and birthdates, he had no further justification to hold them. His continued detention of Carney in order to run the records check constituted an unconstitutional seizure. Moreover, the connection between this illegal seizure and the consequent arrest and search was not sufficiently attenuated to clear the taint—in fact, the seizure directly and immediately resulted in Carney’s arrest. See State v. Ellwood, 52 Wn. App. 70, 74-75, 757 P.2d 547 (1988); cf. *208State v. Rothenberger, 73 Wn.2d 596, 600-01, 440 P.2d 184 (1968). I concur in the majority’s result.

¶12¶25 (dissenting) — Roxanne Elaine Carney appeals her conviction of one count of possession of a controlled substance on the grounds that the trial court erred in denying her motion to suppress drugs found in her sock during a search incident to her arrest. Because the arresting deputy knew that Carney had material evidence regarding the identity of the perpetrator of a crime endangering public safety and welfare, I believe the deputy had the right to detain and identify her. Accordingly, I would affirm.

¶13¶26 On March 6, 2005, a man on a white and blue motorcycle was doing “wheelies” down the center lines and zipping up and down 10th Avenue, a residential street in Vancouver, Clark County, Washington. James Beyer called the police to report the incident and described the motorcyclist as a white male wearing a dark helmet, white shirt, and blue jeans. As Clark County Sheriff’s Deputy Kyle Kendall responded to Beyer’s call, he saw two people in a black car talking to a man wearing a white shirt and blue jeans. Parked nearby was a white and blue motorcycle. Kendall was in uniform and driving a marked patrol car. As he approached, the man hurriedly mounted the motorcycle and drove off. Kendall activated his emergency lights and attempted to stop him, but the motorcyclist swerved around the patrol car, drove over the curb, and fled.

¶14¶27 Deputy Kendall gave dispatch identifying and directional information on the fleeing motorcyclist and then asked the two women in the car to identify themselves and the motorcyclist with whom they had been speaking. Kendall verified the identification they provided and discovered an outstanding arrest warrant for the passenger, Carney. Two small bags of methamphetamine were found on Carney during a search incident to her arrest.

¶15¶28 The State charged Carney with one count of possession of a controlled substance. Following the denial of her *209motion to suppress, Carney was tried to the court on stipulated facts, found guilty, and sentenced to a standard range sentence of 30 days, with 3 days credit for time served and the remaining 27 days converted to community service.

¶16¶29 On appeal, Carney argues that the trial court improperly denied her motion to suppress the evidence found during the search incident to her arrest because the arrest was the result of an initial unlawful seizure. I disagree.

¶17 ¶30 A court reviews the denial of a suppression motion to determine whether substantial evidence supports the trial court’s findings of fact and whether those findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997). Whether a seizure occurred is a mixed question of law and fact. Although the trial court’s factual findings are entitled to deference, whether those facts constitute a seizure is a question of law that we review de novo. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003).

¶18 ¶31 I agree with Carney that Deputy Kendall seized her. But I disagree that the seizure was unlawful. Under article I, section 7 of the Washington State Constitution, a person is seized “when restrained by means of physical force or a show of authority,” her freedom of movement is restrained, and a reasonable person would not believe she is (1) free to leave, under all the circumstances,5 or (2) free to otherwise decline an officer’s request and terminate the encounter. Thorn, 129 Wn.2d at 352. This seizure standard is a “purely objective one, looking to the actions of the law enforcement officer.” State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998). Carney has the burden of proving that a seizure occurred in violation of article I, section 7 of Washington’s constitution. Young, 135 Wn.2d at 509; Thorn, 129 Wn.2d at 354.

¶19*210¶32 In this case, Deputy Kendall prohibited the black car in which Carney was a passenger from leaving. He asked for and received identification from the driver and Carney, and ran a records check on them both while he questioned them about the motorcyclist’s identity.

¶20¶33 A Model Code of Pre-Arraignment Procedure suggests detention of witnesses is permissible when

“(i) The officer has reasonable cause to believe that a misdemeanor or felony, involving danger of forcible injury to persons or of appropriation of or danger to property, has just been committed near the place where he finds such person, and

“(ii) the officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and

“(in) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime.”

¶214 Wayne R. LaFave, Search and Seizure § 9.2(b) (4th ed. 2004) (quoting Am. Law Inst., A Model Code of Pre-Arraignment Procedure § 110.2(l)(b) (1975)).

¶22¶34 Here, Deputy Kendall detained Carney and the driver of the black car as part of his investigation of reckless driving (RCW 46.61.500) and the felony of attempting to elude a police officer (RCW 46.61.024). Kendall initially responded to a report of a motorcyclist driving recklessly in a residential area. He saw a person matching the suspect’s description talking with Carney and another woman. Thus, Kendall had probable cause to believe the women had information regarding the motorcyclist’s identity. When the motorcyclist tried to avoid apprehension by driving onto the sidewalk and speeding off, he committed the felony of attempting to elude a pursuing police officer in the women’s presence. Rather than engaging in a dangerous chase of the fleeing motorcyclist through residential streets, Kendall decided to gather evidence that could later be used to apprehend and charge him.

¶23¶35 The women were clearly eyewitnesses with material evidence of the identity of the person who committed a *211crime endangering the lives and property of others. In my opinion, Deputy Kendall had a duty to question those witnesses and obtain and verify the identity of the motorcyclist if possible. See City of Kodiak v. Samaniego, 83 P.3d 1077, 1084 (Alaska 2004) (officer may take such action as reasonably necessary to obtain or verify the identification of the witness). If they knew the motorcyclist, or could only describe him, they had material evidence of his identity and could later testify whether the man who was driving the motorcycle that night was the registered owner of the motorcycle or not. Arguably, due process required that Kendall take and preserve this identification evidence.6State v. Gilcrist, 91 Wn.2d 603, 609, 590 P.2d 809 (1979); State v. Gerber, 28 Wn. App. 214, 218, 622 P.2d 888 (failure to preserve purely corroborating witness’s identity not constitutionally material), review denied, 95 Wn.2d 1021 (1981). Thus, Kendall properly obtained identification of two eyewitnesses to a crime, learned of an outstanding arrest warrant, and lawfully arrested Carney on the warrant.

¶24*212¶36 Once Deputy Kendall found there was an outstanding warrant for Carney’s arrest, he was entitled to arrest her and search her pursuant to the valid arrest warrant. See, e.g., People v. Murray, 312 Ill. App. 3d 685, 691-92, 728 N.E.2d 512, 245 Ill. Dec. 430 (2000) (It would be illogical and nonsensical for us to hold that once the police illegally stop an automobile, they can never arrest an occupant who is found to be wanted on a warrant. Even in situations where the exclusionary rule is plainly applicable, the Supreme Court has declined to adopt a “per se” or “but for” rule that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.); see State v. Jones, 27 Kan. App. 2d 476, 5 P.3d 1012 (2000) (Once the officer learned of the outstanding warrant, he had a right and duty to arrest the appellant, regardless of whether appellant had been lawfully or unlawfully detained at that point in time. Once the officer had the right to lawfully arrest the appellant, the officer had a right to search him incident to the arrest.), aff’d, 270 Kan. 526, 17 P.3d 359 (2001).

¶25¶37 Washington courts, as well as several other courts in the country, have held that outstanding arrest warrants supply probable cause to arrest and, thus, provide an intervening circumstance under Brown,7which dissipates the taint of an initial illegal encounter. United States v. Green, 111 F.3d 515 (7th Cir.), cert. denied, 522 U.S. 973 (1997); People v. Hillyard, 197 Colo. 83, 589 P.2d 939 (1979); State v. Hill, 97-2551 (La. 11/6/98), 725 So. 2d 1282; State v. Thompson, 231 Neb. 771, 438 N.W.2d 131 (1989); Reed v. State, 809 S.W.2d 940 (Tex. App. 1991); State v. Rothenberger, 73 Wn.2d 596, 440 P.2d 184 (1968).

¶26¶38 Carney does not and could not reasonably challenge the search incident to her arrest on the warrant. A search incident to arrest, under article I, section 7 of the Washington State Constitution, is a recognized exception to the *213general warrant requirement. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). “The valid arrest provides the ‘authority of law’ to search.” Potter, 156 Wn.2d at 840.

¶27¶39 Accordingly, the trial court properly declined to suppress evidence found during the lawful search incident to Carney’s arrest and I would affirm.

¶28Review denied at 164 Wn.2d 1009 (2008).