Opinion
No. 51678-7-I
Filed: December 13, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-03275-0. Judgment or order under review. Date filed: 12/13/2002. Judge signing: Hon. Cheryl Carey.
Counsel for Appellant(s), Anthony A. Aase (Appearing Pro Se), Larch Corr. Cntr. D.O.C. #952737, 15314 NE Dole Valley Rd., Yacolt, WA 98675-9531.
Nielsen Broman Koch Pllc, Attorney at Law, 1908, E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Amy R Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co, Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Anthony Allan Aase appeals the trial court's denial of his motion to suppress evidence. He argues that the police officers' warrantless search of his truck did not take place contemporaneously with his arrest. We affirm.
FACTS
In June 2002, Officer Joseph Vojir of the Auburn Police Department was parked on the street in his patrol car when he saw a red truck pull into a convenience store parking lot. Officer Vojir followed the truck into the parking lot, where the driver got out and went into the store. Officer Vojir testified he thought that he recognized the driver, but could not remember his name.
Officer Vojir ran the truck's license plate and learned that it was registered to Anthony Aase (Aase) and Merland Aase. Officer Vojir testified that he realized then that the driver was Aase, whom he had encountered in the past. Officer Vojir ran Aase's driving record and discovered that his license was suspended or revoked. Officer Vojir then left the parking lot and drove approximately one block away to wait and see whether Aase would drive away from the convenience store.
Aase left the convenience store, got into his truck and drove toward Officer Vojir. Aase then pulled to the curb for a moment, paused, and continued driving down the street. At trial Officer Vojir testified that he first noticed Aase's truck at 5:41 p.m. and called dispatch to let them know he was stopping Aase at 5:43 p.m. As Officer Vojir pulled alongside the truck Aase pulled over, got out of the cab, and started to walk away. Aase was 15 to 20 feet away from the truck when Officer Vojir called out his name. Officer Vojir asked Aase for his driver's license. Aase told Officer Vojir that he did not have it with him and gave Officer Vojir either an old Washington State ID card or an expired driver's license. Officer Vojir told Aase to return to the truck and wait inside. Officer Vojir testified that he intended to arrest Vojir at that point for driving with a suspended license, but wanted to wait to make the arrest until another officer was there out of safety concerns. Shortly after stopping Aase, Officer McPherson arrived. The two of them arrested Aase for DWLS 3. Officer Vojir patted Aase down and found a lipstick tube containing cotton balls and clear plastic baggies with marijuana-leaf symbols on them. He also found a small brass pipe. Officer Vojir placed Aase in handcuffs told him he was under arrest and searched him incident to arrest.
In addition to calling for backup Officer Vojir called for a K-9 unit. The K-9 unit, consisting of Officer Faini and his police dog Tundra, was dispatched and enroute to the scene by 5:46 p.m. They arrived `possibly only a few minutes after that.' It appears that the K-9 unit was at the scene for approximately 30 minutes before entering the truck.
Once inside the truck Tundra alerted Officer Faini to an area between the top of the steering column and the dash. Officer Faini looked at the spot indicated by Tundra and saw a corner of a 2-inch square clear plastic ziplock bag sticking out from the column. He found three small baggies stuck in this area of the truck, each of which contained a powdery substance. He also discovered a plastic tube connected to a regulator valve, with fittings corroded with a bluish-green colored substance, heavy rubber gloves, an empty box of Sudafed and lithium batteries with their casings removed, all of which he believed to be consistent with methamphetamine manufacture.
The State charged Aase with manufacturing methamphetamine and possession of ephedrine or pseudo ephedrine with the intent to manufacture methamphetamine. Aase moved to suppress the evidence collected during the warrantless search of his truck. The trial court denied his motion. Aase waived his right to a jury trial and the State dismissed the manufacturing charge. The trial court reviewed the stipulated material and found Aase guilty of possessing ephedrine or pseudo ephedrine with the intent to manufacture methamphetamine. The trial court sentenced Aase under the Drug Offender Sentencing Alternative (DOSA).
ANALYSYS
Aase argues that the warrantless search of his truck did not qualify as a search incident to arrest. We review the reasonableness of a search or seizure de novo. State v. Hoffman, 116 Wn.2d 51, 97-98, 804 P.2d 577 (1991). Under the fourth amendment to the United States Constitution and article I, section 7 of the Washington State Constitution warrantless searches are per se unreasonable unless they fit into one of the ``jealously and carefully drawn' exceptions' to the warrant requirement. State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996), quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586 (1979)). The State bears the burden of showing that a warrantless search and seizure falls within an exception to the warrant requirement. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999).
Aase does not challenge the search on the basis that he was out of the vehicle when contacted by Officer Vojir and ordered to return. See State v. Porter, 102 Wn. App. 327, 6 P.3d 1245 (2000).
A search incident to arrest is an exception to the warrant requirement. State v. Smith, 119 Wn.2d 675, 678, 835 P.2d 1025 (1992). In New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860 (1981) the United States Supreme Court held that a police officer may search the passenger compartment of an automobile as a contemporaneous search incident to arrest. The police officer in Belton stopped a car for speeding. Belton, 453 U.S. at 455. When talking with the driver the officer saw an envelope marked `super gold' which he associated with marijuana. Belton, 453 U.S. at 455-56. The officer asked all four occupants to step out of the car. Belton, 453 U.S. 456. He arrested, Mirandized, and searched them. Belton, 453 U.S. at 456. Next, while all four passengers were handcuffed and sitting on the side of the road, the officer searched the passenger compartment. Belton, 453 U.S. at 456. He found Belton's jacket on the back seat. Belton, 453 U.S. at 456. He searched the jacket and found cocaine. Belton, 453 U.S. at 456. Belton argued that the search was unlawful. Belton, 453 U.S. at 456. The Court held that when a police officer has made a lawful custodial arrest of the occupant of an automobile, he or she may search the passenger compartment of the automobile as a contemporaneous search incident to arrest. Belton, 453 U.S. at 460.
A police officer can request assistance to secure a scene and to perform a search incident to arrest. State v. Boursaw, 94 Wn. App. 629, 634, 976 P.2d 130 (1999). In Boursaw Officer Brian Oswalt (Officer Oswalt) stopped Boursaw for a traffic infraction. Boursaw, 94 Wn. App. at 630-631. Officer Oswalt arrested Boursaw for driving with a suspended license and placed him in the patrol car. Boursaw, 94 Wn. App. at 631. He searched the passenger compartment of the automobile and found needles and several plastic ziplock bags. Boursaw, 94 Wn. App. at 631. He assumed they were narcotics and called for a K-9 unit. Boursaw, 94 Wn. App. at 631. Ten minutes later the K-9 unit arrived and found additional drugs in the vehicle's passenger compartment. Boursaw, 94 Wn. App. at 631. Boursaw argued that the initial search incident to arrest secured the scene and thus the `K-9 search was a search for additional evidence — an activity not related to the arrest process — and was not a proper search incident to arrest.' Boursaw, 94 Wn. App. at 634. This Court held that `because the delay was only 10 minutes and Boursaw was at the scene the search [was] not beyond the duration of a search incident to arrest.' Boursaw, 94 Wn. App. at 635. The court also stated that its holding was `limited to the facts of this case, and delays caused by a request for assistance might be unreasonable under differing circumstances.' Boursaw, 94 Wn. App. at 635. A search must be conducted closely on the heels of an arrest to be considered contemporaneous. United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987). In Vasey a police officer stopped Vasey for speeding. Vasey, 834 F.2d at 784. The officer arrested Vasey pursuant to a warrant. Vasey, 834 F.2d at 784. The officer then asked Vasey if he could search the car. Vasey, 834 F.2d at 784. Vasey refused. Vasey, 834 F.2d at 784. The officer was suspicious that the car might contain drugs. Vasey, 834 F.2d at 784. He decided to impound the car. Vasey, 834 F.2d at 784. Then, following local police procedures, he entered the car to inventory its contents. Vasey, 834 F.2d at 784. He conducted this search 30 to 45 minutes after the arrest. Vasey, 834 F.2d at 784. The Ninth Circuit held that a 30 to 45 minute delay was too long for the search to be considered contemporaneous with an arrest. Vasey, 834 F.2d at 787.
A police officer may request assistance to secure a scene and to perform a search incident to arrest. Boursaw, 94 Wn. App. at 634. A K-9 unit was dispatched three minutes after Officer Vijor stopped Aase. Significantly, the officer's actions here appear reasonably calculated to perform the search incident to arrest and to secure the scene. The officers did not engage in any activities unrelated to the securing of the suspect and scene.
A delay caused by unnecessarily time-consuming activities unrelated to the securing of the suspect and scene may be unreasonable. Smith, 119 Wn.2d at 684. In Smith Police Officer Elaine Gonzales (Officer Gonzales) chased down and tackled Smith as he ran from the scene of a crime. Smith, 119 Wn.2d at 677. Smith's fanny pack fell off when the officer tackled him. Smith, 119 Wn.2d at 677. Officer Gonzales subdued and handcuffed Smith. Smith, 119 Wn.2d at 677. She then retrieved the fanny pack. Smith, 119 Wn.2d at 677. Next, she placed Smith in the back of the patrol car and placed the fanny pack on the front seat. Smith, 119 Wn.2d at 677. She did not search the fanny pack at that time. Smith, 119 Wn.2d at 677. Instead she consulted with another officer. Smith, 119 Wn.2d at 677. She then picked up some beer bottles that were lying on the ground around the scene. Smith, 119 Wn.2d at 677. After that she reported that she had a person in custody, and may have performed a radio warrant check. Smith, 119 Wn.2d at 677. Eventually she searched the fanny pack, which was still on the front seat in the patrol car. Smith, 119 Wn.2d at 677. She found a pipe, marijuana and a scale with cocaine residue. Smith, 119 Wn.2d at 677. This search took place between nine and 17 minutes after she arrested Smith. Smith, 119 Wn.2d at 677. The Washington State Supreme Court held that the delay between the arrest and search was reasonable, because `all of the actions leading to the delay were reasonable . [not] caused by unnecessarily time-consuming activities unrelated to the securing of the suspect and the scene.' Smith, 119 Wn.2d at 683-684. It continued to note that `Officer Gonzales' activities were all incident to the arrest and, under the facts of this case, the delay was reasonable.' Smith, 119 Wn.2d at 684.
Here, the officers lawfully arrested Aase. They had the legal authority to conduct a search of the passenger compartment of the truck as a contemporaneous search incident to arrest. Aase argues that this search was not conducted contemporaneously with his arrest. He claims that `the circumstances of the arrest required that Aase's truck be searched as soon as he had been arrested, handcuffed, and placed into the patrol car.' A search must be conducted closely on the heels of an arrest to be considered contemporaneous. Vasey, 834 F.2d at 787. Aase concedes that Officer Faini arrived only a few minutes after he was contacted. In the time between arriving at the scene and searching Aase's truck Officer Faini spoke with Officer Vojir, got information regarding the truck, made certain that there was nothing hazardous in the cab before letting Tundra search, and then prepared the dog to search. It took Tundra between three and four minutes to locate drugs. While Officer Faini and Tundra may have been on the scene for approximately 30 minutes before entering the truck, Aase has not established that the officers engaged in unnecessary, time-consuming activities unrelated to securing the scene or him. Under the facts of this case all activities were incident to the arrest and the delay was reasonable. The search was proper. Denial of the motion to suppress was proper.
Affirmed.
SCHINDLER and BECKER, JJ., Concur.