[No. 45749-7-I. Division One. December 18, 2000.]
THE STATE OF WASHINGTON, Respondent, v. ATLAS WHELESS, Appellant.
[1] Searches and Seizures - Warrantless Search - Validity - Burden of Proof. The State bears the burden of proving that a
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warrantless search is valid under a recognized exception to the constitutional warrant requirement.
[2] Searches and Seizures - Automobiles - Warrantless Search - Incident to Arrest of Occupant - Recent Occupant - Validity - Test. A law enforcement officer may not conduct a warrantless search of a motor vehicle incident to the arrest of a recent occupant of the vehicle unless there is a close temporal and physical proximity between the arrest and the search.
[3] Criminal Law - Review - Harmless Error - Constitutional Error. An error of constitutional magnitude in a criminal trial is harmless only if the reviewing court is convinced beyond a reasonable doubt that a reasonable jury would have reached the same result in the absence of the error.
[4] Searches and Seizures - Warrantless Search - Validity - Exigent Circumstances - Underlying Rationale. The exigent circumstances exception to the constitutional warrant requirement applies only when obtaining a warrant is impractical because the suspect is fleeing, police officers or members of the public are in danger, or evidence may be removed or destroyed.
[5] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Witnesses as Liars. It is misconduct for a prosecutor to argue in a criminal trial that, in order to acquit the defendant, the jury must find that the State's witnesses are either lying or mistaken.
Nature of Action: Prosecution for unlawful delivery of a controlled substance within 1,000 feet of a school bus route stop. Evidence of the crime was found in a truck that was parked at some distance from where the defendant was arrested but that the defendant had occupied a short time earlier. The search of the truck was conducted without a warrant.
Superior Court: The Superior Court for King County, No. 99-1-01365-1, George A. Finkle, J., on December 22, 1999, entered a judgment on a verdict of guilty.
Court of Appeals: Holding that the warrantless search of the truck could not be justified under either the search incident to arrest exception or the exigent circumstances exception to the constitutional warrant requirement, that the evidence found in the course of the search should have been suppressed, that the prosecutor committed
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misconduct by arguing that to acquit the defendant the jury would have to find that the State's witnesses had lied, and that none of the errors was harmless, the court reverses the judgment.
Kathleen A. Barry; and David B. Koch (of Nielsen, Broman & Associates, P.L.L.C.), for appellant.
Norm Maleng, Prosecuting Attorney, and Stacie Summerhill, Deputy, for respondent.
PER CURIAM - Atlas Wheless appeals his conviction for delivery of cocaine within a school bus route stop zone in violation of RCW 69.50.401(a)(l)(i) and RCW 69.50.435(a)(3), contending the trial court violated his constitutional rights by refusing to suppress a crack cocaine pipe found during a vehicle search. Because Wheless was arrested far away from the truck in which police found the pipe, it was not a lawful search incident to arrest, and the trial court should have suppressed the evidence. Accordingly, we reverse the conviction.
FACTS
On February 5, 1999, several Seattle police officers were conducting a "buy-bust" operation near the Hook, Line and Sinker tavern on Rainier Avenue. Working undercover, Officer Joseph Pioli made contact with Wheless in the tavern's parking lot and asked Wheless for "a forty", a common street term for 40 dollars worth of crack cocaine. Wheless pulled a folded bottle cap out of his pocket, opened it and handed Pioli two rocks of what appeared to be crack cocaine, a suspicion later confirmed by crime lab testing. In exchange, Pioli gave Wheless two pre-marked 20-dollar bills.
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As Pioli walked away from Wheless, he signaled the successful buy to three other officers who were participating in the operation. After hearing a description of the suspect over the radio, Officer Daniel Bresnahan observed Wheless, who matched the description, walk to a yellow pick-up truck parked in the lot about 50-75 feet from the tavern's entrance.«1» Wheless got into the driver's seat and, a few moments later, an unidentified woman exited the tavern, walked to the truck, and got into the passenger seat. While Wheless and the woman sat in the car for less than a minute, the observing officers were unable to see their hands. When the woman got out of the truck and walked away, Wheless also left the vehicle and walked toward the tavern's entrance.
Officers followed Wheless into the tavern and arrested him in the tavern's bathroom. They searched him and found six dollars, but they did not find the buy money. A short time after Wheless' arrest, Officer Raymond Volluz searched the pick-up truck using a narcotics detection dog. The dog located a glass tube of the type customarily used to smoke crack cocaine under the floor mat on the driver's side.
Wheless was charged with unlawful delivery of cocaine within 1,000 feet of a school bus stop. At the CrR 3.6 hearing, he argued that the truck search was an unlawful warrantless search and moved to suppress the crack pipe. The trial court denied the motion, concluding that the search was lawful as incident to an arrest. A jury found Wheless guilty. At the sentencing hearing, he moved for arrest of judgment or, in the alternative, a new trial. The court denied the motion and imposed a standard range sentence plus a 24-month school bus stop zone enhancement. This appeal followed.
DISCUSSION
[1] The Fourth Amendment to the U.S. Constitution
«1» The record does not reveal who owned the truck.
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guards against unreasonable searches and seizures.«2» Although warrantless searches are unreasonable per se under the Fourth Amendment, there are several exceptions to that rule: consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry investigative stops.«3» These exceptions are "jealously and carefully drawn,"«4» and the State has the burden of proving them.«5» Here, the State contends the truck search was justified under the search incident to arrest exception. We disagree.
In Chimel v. California,«6» the United States Supreme Court established a broad principle for the search incident to arrest exception, holding that officers may search the area within the "immediate control" of an arrestee to ensure officers' safety and prevent destruction of evidence. More than a decade later, in New York v. Belton,«7» the Court articulated a bright-line rule for applying that exception in situations involving a vehicle search: An officer who has made a lawful custodial arrest of the occupant of a vehicle may search the passenger compartment contemporaneously with the arrest. This rule satisfied Chimel's "immediate control" principle because "articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].' "«8»
«2» The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
«3» State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563 (1996).
«4» Id. at 72.
«5» Id. at 71.
«6» 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
«7» 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
«8» Id., at 460 (quoting Chimel, 395 U.S. at 763).
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In State v. Stroud,«9» our Supreme Court held that arrestees receive even greater protection under article 1, section 7 of the Washington Constitution«10» and fashioned a Bel ton -like rule that distinguished between a locked and unlocked container or glove compartment accordingly:
During the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant. . ..«11»
The Court reiterated Belton's pronouncement that the exigencies of danger to the officers and the potential destruction of evidence provide the justification for searching a vehicle incident to a lawful custodial arrest.«12»
[2, 3] This court refined the analysis further in State v. Fore,«13» when we held that, according to Stroud, "a valid vehicle search incident to an arrest requires a close physical and temporal proximity between the arrest and the search." Although this gloss injected a dose of subjectivity into Stroud's bright-line rule, it was appropriate. The Fore proximity rule ensures that an application of the search incident to arrest exception does not contravene the underlying justification for the Stroud rule-preventing harm to officers and the potential destruction of evidence. Without this gloss, Stroud could be read to allow a search at the time of an arrest regardless of whether the arrest took place in or close to the vehicle being searched.
Applied to the facts here, Stroud and Fore require that
«9» 106 Wn.2d 144, 151, 720 P.2d 436 (1986).
«10» That section states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."
«11» Stroud, 106 Wn.2d at 152.
«12» Id. at 151.
«13» 56 Wn. App. 339, 347, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011, (1990).
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items in the truck were at least arguably within Wheless' control at the time of the arrest. They were not. Even assuming temporal proximity,«14» there was no physical proximity between the arrest, which took place inside the tavern's bathroom, and the car search, which occurred in the tavern parking lot. As such, it was not a proper search incident to arrest.«15» The trial court's conclusion that physical and temporal proximity was present because Wheless "was seen sitting in the driver's side of the car in question immediately after having sold narcotics to an undercover police officer" missed the mark. Rather than evaluating the physical and temporal proximity between the arrest and the vehicle search, the court mistakenly focused on the temporal proximity between the drug transaction and the time Wheless spent in the truck. This is not the rule, and the search was unconstitutional. We must reverse the conviction because we cannot conclude beyond a reasonable doubt that a reasonable jury would have reached the same result in the absence of the error.«16» Our concerns about the verdict are significant here because the buy money was never located and the crack pipe could have unduly influenced the jury.
Citing Fore, the State argues that because the officers believed that relevant items like the buy money might have been in the truck because Wheless had recently sat in it, the search was legal. In Fore, this court supported its decision that a car search was a lawful search incident to arrest by
«14» The record does not clearly reveal how much time elapsed between the arrest and the vehicle search. The State explains merely that the officers conducted the search "[a] short time" after the arrest.
«15» Accord, State v. Porter, 102 Wn. App. 327, 6 P.3d 1245 (2000) (holding that warrantless vehicle search was illegal where van searched was 300 feet from defendant when he was arrested). In Porter, Division II reaffirmed that the immediate control principle is the essential measure for determining whether the Belton-Stroud bright-line rule applies and justifies the search: "[I]f the police initiate an arrest and the passenger compartment of a vehicle is not within an arrestee's area of 'immediate control,' Stroud does not apply." Id. at 333.
«16» An illegal search may be determined harmless on appeal if the court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of error. State v. Gonzales, 46 Wn. App. 388, 402, 731 P.2d 1101 (1986).
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commenting that "both men had been occupants of the moving vehicle just a few minutes prior to the arrest [and] the vehicle itself was directly connected to the probable cause determination supporting the arrest."«17» But these observations were dicta because the court had already reaffirmed the Stroud rule and determined that there was temporal and physical proximity between the arrest and search. The overriding criterion for evaluating a warrantless vehicle search incident to arrest is that weapons or evidence be accessible to the arrestee. Where they are not, the search cannot be incident to arrest, and a warrant is required.
[4] The State also relies on the exigent circumstances exception to the warrant requirement, which applies "where it is impractical to obtain a warrant because the suspect is fleeing, the officer or the members of the public are in danger, or based on mobility of a vehicle, and mobility or threatened destruction of evidence."«18» The focus of this exception is the impracticality of obtaining a warrant in time.«19» There were no exigent circumstances to justify the warrantless search in this case. The State claims there was "a risk that evidence remained in the car [and] that important evidence was getting further and further from the scene in the hands of the woman." But while both of those claims may have been true, the record contains no indication that evidence in the truck might have been destroyed or that the officers were prevented from pursuing the woman while waiting for a warrant. The case on which the State relies to support its exigent circumstances argument presented a radically different scenario. In State v. Patterson,«20» the Supreme Court reviewed a warrantless search of a parked, secured, unoccupied vehicle where witness information and physical evidence indicated
«17» Fore, 56 Wn. App. at 348.
«18» State v. Rulan C., 97 Wn. App. 884, 889, 970 P.2d 821, 990 P.2d 422 (1999).
«19» Id.
«20» 112 Wn.2d 731, 774 P.2d 10 (1989).
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strongly that the suspect was nearby, demonstrating the "freshness of the pursuit."«21» Upholding the search, the court reasoned that "[h]ad the officers delayed the search by applying for a warrant, the suspect could have moved far from the immediate scene" and that "[t]here was a need to proceed as quickly as possible to apprehend the defendant who had burglarized the store only minutes before the search."«22» In contrast, Wheless was under arrest. No comparable exigent circumstances were present here.
[5] In his pro se supplemental brief, Wheless argues the prosecutor erred in stating "that in order to find [him] innocent, the police of Seattle, WA., must be lying." He fails to develop his argument any further and merely cites to an assortment of federal cases rather than the line of relevant Washington cases, and the State did not respond to Wheless' pro se arguments. But the comments to which Wheless refers constitute prosecutorial misconduct, and we reach this issue to demonstrate another reason why we cannot uphold the jury's verdict.
In her closing argument the prosecutor stated:
The theory there with the Defense is that it was some other guy selling the drugs and not this defendant. Well, how is that possible? Well, there's a couple of ways.
First of all, it could be possible if every officer in that chain is lying....
The second choice is that Officer Pioli is somehow confused or mistaken, that he bought drugs from somebody and then legitimately mistook the person that he bought drugs from for the defendant. . . .
. . . [T]he [next] possible explanation is that Officer Pioli is a big, fat liar, and that this transaction never happened....
. . . So, what that means . . . [is] that Officer Pioli intentionally in the view of all of these other officers made this up,
«21» Id. at 736.
«22» Id. at 736-37.
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knowing they were watching him. . ..«23»
In making these remarks, the prosecutor implicitly created an either/or decision for the jury: Either it must find that the officers in general, or Officer Pioli in particular, were lying and acquit Wheless, or it must find that Pioli was telling the truth and convict Wheless. This argument violated the clear, long-standing rule that a prosecutor must not argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken.«24» The jury was not required to convict unless it determined an officer was lying; rather, it was required to acquit unless it had an "abiding conviction" in the truth of the State's witnesses' testimony.«25»
The degree of the prosecutor's misconduct was heightened when she essentially conflated the jury's task of assessing credibility with a determination of whether a witness is lying:
We talked a lot in jury selection about credibility and how you measure credibility. We gave a lot of different examples: Training, experience, the way some of us speak. And that is also in your jury instructions. There's different ways that you get to assess credibility. Well, think about Officer Pioli up there on the stand. Remember, remember everything that he said and did. He was on that stand for an absurdly long time. Did he come across to you as a sneaky, conniving, well-practiced liar? Was he caught in any lies? Did anybody, either on direct examination or cross-examination, show you evidence that he was a liar? No. . . .
What is one of the biggest things that we talked about in jury selection about how to assess credibility? It's your gut, that feeling in your gut. Well, ask yourself. When Officer Pioli was up there testifying, what did your gut tell you? Did it tell you that
«23» Defense counsel presented no witnesses at trial. Its general approach was to poke holes in the State's case through cross-examination, apparently implying that either Wheless was not the person who participated in the drug transaction with Officer Pioli or that the transaction did not occur.
«24» State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997).
«25» See id.
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he was up there lying to you, or did it tell you that he was a regular Joe out there on the streets doing his job and then coming here and telling you about it?. ..«26»
The prosecutor's excessive emphasis on whether Officer Pioli was lying while explaining credibility to the jury was improper. Ajury could question or even reject the credibility of a witness without believing the witness was lying.
The prosecutor's references to lying were blatant and pervasive and may well have misled the jury. When combined with the improperly admitted crack pipe, we cannot conclude that a reasonable jury would have found Wheless guilty if neither had occurred at trial.
Reversed.
KENNEDY and Cox, JJ., concur.
«26» (Emphasis added.)