Opinion
No. 51317-6-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-04776-5. Judgment or order under review. Date filed: 10/14/2002. Judge signing: Hon. Stephen G Scott.
Counsel for Appellant(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Gregory L Fullington, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Jose Perez-Rodriguez appeals the trial court's denial of his motion to suppress evidence. He argues that the police officers' warrantless search of his car did not take place contemporaneously with his arrest. We affirm.
FACTS
In May 2002, Police Officers Juan Ornelas, a student patrol officer, and Todd Kibbee, Ornelas' Field Training Officer, were on patrol. Officer Ornelas spotted a truck without working taillights and pulled it over. The driver, Jose Perez-Rodriguez, did not have a driver's license or insurance. He told Officer Ornelas that he did not know who owned the truck, but then said that it belonged to a friend. Officer Ornelas returned to the patrol car to run Perez-Rodriguez's name through the on-board computer. While running the check, Officer Ornelas observed Perez-Rodriguez make a cell phone call, but testified that he thought nothing of it. Officer Ornelas found a warrant for Perez-Rodriguez's arrest. The warrant was for failure to appear for a Violation of the Uniform Controlled Substances Act (VUCSA). After verifying the warrant, Officer Ornelas arrested Perez-Rodriguez at 9:42 p.m. He searched Perez-Rodriguez, recovered roughly $1,200, and placed him in the back of the patrol car. Officer Kibbee then told Officer Ornelas that he was taking over.
Officer Kibbee requested a K-9 unit to search the truck at 9:45 p.m. At that time two K-9 units were on duty. One was involved in the execution of a search warrant, but the other was available. Officer Kibbee testified that if both units had been busy he would have searched the truck himself. While the officers were waiting for the K-9 unit two men arrived. One of them identified himself as Perez-Rodriguez's cousin. He told Officer Ornelas that Perez-Rodriguez had telephoned him to let him know where he was. He asked what was going to happen to the truck. Officer Ornelas told him that it would be impounded at which point both men left.
After the two men left the K-9 unit, comprised of Officer Volluz and Police Dog Scar, arrived at 10:05 p.m. Officer Kibbee explained the situation to Officer Volluz who then searched the truck with Scar at 10:08 p.m. They found flake cocaine, 25 to 30 individually wrapped packets of heroin and a digital scale, all in the truck's passenger compartment. The search took place 26 minutes after the arrest.
A jury found Perez-Rodriguez guilty of two counts of Violation of the Uniform Controlled Substances Act: Possession with Intent to Deliver Heroin and Possession with Intent to Deliver Cocaine. The trial court sentenced him to 21 months of confinement.
ANALYSIS
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). Perez-Rodriguez argues that the 26 minutes between his arrest and the K-9 search of the truck he had been driving constituted an unreasonable delay. Under the Fourth Amendment of the United States Constitution and article I, section VII of the Washington State Constitution, warrantless searches are per se unreasonable unless they fit into one of the "`jealously [guarded] 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, 61 L.Ed.2d 235 (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).
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, 457, 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 454. When talking with the driver, the officer saw an envelope marked "Supergold" which he associated with marijuana. Belton, 453 U.S. at 455-56. The officer asked all four occupants to step out of the car. He searched, arrested, and gave them their Miranda warnings. Belton, 453 U.S. at 456. Next, while all four occupants 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. He searched the jacket and found cocaine. 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 462-63.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Here, the officers lawfully arrested Perez-Rodriguez. They had the right to conduct a search of the passenger compartment of the car as a contemporaneous search incident to arrest. Belton, 453 U.S. at 457. Perez-Rodriguez argues that the 26 minute delay between his arrest and the search of his truck was unreasonable. He notes that the 26 minute delay is closer in time to the 30 to 45 minute delay that the Court held was unreasonable in United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987), than the 17 minute delay that the Washington Supreme Court held was reasonable in Smith. He argues that his situation is different than that in State v. Boursaw, 94 Wn. App. 629, 634, 976 P.2d 130 (1999), in which the police called the K-9 unit after they had already started the search and found drug paraphernalia, because here, the police called the K-9 unit directly. He argues this case is also different in that the K-9 unit in Boursaw took 16 minutes longer to arrive. Boursaw, 94 Wn. App. at 635.
A search must be conducted closely on the heels of an arrest to be considered contemporaneous. Vasey, 834 F.2d at 787. In Vasey, a police officer stopped Vasey for speeding and then arrested him pursuant to a warrant. Vasey, 834 F.2d at 784. Vasey refused the officers request to search his car. Vasey, 834 F.2d at 784. The officer impounded the car, suspicious that it might contain drugs, and then, following local police procedures, entered it to inventory the contents. Vasey, 834 F.2d at 784-785. He conducted this search 30 to 45 minutes after the arrest. Vasey, 834 F.2d at 787. 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 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 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, and placed his fanny pack on the patrol car's front seat. Smith, 119 Wn.2d at 677. She then picked up some beer bottles that were lying on the ground around the scene, reported that she had someone in custody, and performed a radio warrant check. Smith, 119 Wn.2d at 677. Finally, about 17 minutes after gaining control of it she searched the fanny pack. Smith, 119 Wn.2d at 677. The Washington 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 683-84. 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.
We must determine if the 26 minute delay was "caused by `unnecessarily time-consuming activities unrelated to the securing of the suspect and the scene.'" Boursaw, 94 Wn. App. at 633 (quoting Smith, 119 Wn.2d at 684). A police officer can request assistance to secure a scene and to perform a search incident to arrest. Boursaw, 94 Wn. App. at 634. In Boursaw, Police Officer Brian Oswalt stopped Boursaw for a traffic infraction. Boursaw, 94 Wn. App. at 630-31. 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 zip-lock 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. The Court of Appeals 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.
Here, Officer Kibbee knew of the outstanding VUCSA warrant and the large amount of cash on Perez-Rodriguez. Officer Kibbee suspected that Perez-Rodriguez had drugs in the car. He called for a K-9 unit immediately after Perez-Rodriguez's arrest to confirm this fact. Perez-Rodriguez had made a call after being stopped that resulted in two men showing up and asking about what would happen to the truck. The officer's actions here clearly were not "unrelated to . . . securing . . . the suspect and the scene." Boursaw, 94 Wn. App. at 633. While the K-9 unit took 26 minutes to arrive compared to the 10 minutes in Boursaw, we do not view this as "`unnecessarily time-consuming.'" Boursaw, 94 Wn. App. at 633 (quoting Smith, 119 Wn.2d at 684). The call to the K-9 unit was promptly made and no evidence suggests that the K-9 unit failed to respond promptly. The 26 minute wait for Officer Volluz and Police Dog Scar to drive to the scene also was not unreasonable. Accordingly, on the facts of this case we conclude the officers properly conducted the search contemporaneously with the arrest.
Having found a valid search incident to arrest, we need not address whether the evidence would also have been admissible under the inevitable discovery doctrine.
We affirm.
APPELWICK, COLEMAN, BAKER, JJ., concur.