State v. Heath

STATE OF WASHINGTON, Respondent, v. CHERYL ANN HEATH, Appellant.

No. 52994-7-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

April 21, 2020

UNPUBLISHED OPINION

SUTTON, A.C.J. — Cheryl Ann Heath appeals her conviction for unlawful possession of a controlled substance, cocaine.¹ Heath's conviction was based on the discovery of cocaine in a backpack that she had been wearing when a law enforcement officer observed her commit a traffic infraction. Heath had set down the backpack immediately before her initial detention. The trial court concluded that the search of the backpack was a proper search incident to arrest under the "time of arrest rule."

Heath argues that the trial court erred when it (1) admitted the arresting officer's investigation report under ER 104 and ER 1101 at the suppression hearing without also requiring the arresting officer to testify when there were material factual issues that needed to be resolved, (2) refused to decide the disputed issue of when Heath set down her backpack in relation to when the arresting officer activated her patrol vehicle's emergency lights, and (3) concluded that thesearch of the backpack was a lawful search incident to arrest under the time of arrest rule. Because the trial court did not rely on the officer's report to support its conclusion that the search of the backpack was lawful and Heath's own testimony supports the trial court's decision, we affirm Heath's conviction.

FACTS²

After stopping Heath for making an illegal turn on her motorcycle, Officer Jennifer Corn and a second officer arrested Heath for driving without an ignition interlock device. After the arrest, the officers searched Heath's backpack and found cocaine.

The State charged Heath with unlawful possession of a controlled substance, cocaine, and operating a motor vehicle without an ignition interlock device. Heath moved to suppress the drug evidence, arguing that the search of the backpack was illegal.

At the suppression hearing, the State relied exclusively on Corn's certified investigation report. Heath declined to stipulate to Corn's report and objected to the State's reliance on the report without also presenting testimony from Corn. The trial court overruled the objection.

In her report, Corn stated that she had observed Heath make an illegal turn, stop her motorcycle, and light a cigarette. Corn then pulled in behind Heath and activated the patrol car's overhead lights. Corn further stated that when she approached Heath, Heath "got off the bike and took off her backpack." Clerk's Papers (CP) at 16.

Heath also testified at the hearing. She stated that she made an illegal turn after driving off of the Bremerton-Seattle ferry while wearing the backpack and immediately pulled over to smoke a cigarette. After pulling over, she got off of the motorcycle, removed her backpack, took her cigarettes out of the backpack, and set the backpack on the ground. After placing her backpack on the ground and lighting her cigarette, Heath first noticed the patrol car's emergency lights. She assumed that the officer was contacting her because the officer had observed her make the illegal turn. Heath estimated that the officer approached her about 30 seconds after Heath had removed her backpack to take out her cigarettes. Heath commented that "[i]t doesn't take long to take my cigarettes out and light them, and I turned around and saw the lights."

The trial court denied Heath's motion to suppress. The trial court's written findings of fact and conclusions of law provided, in part:

FINDINGS OF FACT

IV.

That Corn saw defendant make a left turn through a no left turn zone and immediately pull[ ] over to smoke a cigarette.

V.

That Corn initiated a traffic stop of the defendant.

VI.

That defendant took off her backpack. Cheryl Heath testified she took off her backpack prior to Officer Corn activating her emergency lights. Officer Corn did not testify at the hearing, although her report was admitted. The Court declines to make findings whether [Heath] removed the backpack before or after the emergency lights were activated because the Court would reach the same conclusions regardless.

VII.

That defendant removed a pack of cigarettes from the backpack and placed her backpack beside her motorcycle. She was in the process of lighting a cigarette when Officer Corn approached her.

CONCLUSIONS OF LAW

II.

That State v. Byrd,³State v. Brock,⁴ and the "Time of Arrest" rule allow officers to search an arrestee's belongings when they are in the arrestee's actual and exclusive possession at or immediately preceding arrest.

III.

That defendant actually and exclusively possessed the backpack immediately preceding arrest.

IV.

That officers lawfully searched defendant's backpack incident to arrest.

CP at 57-58 (emphasis added).

Following a stipulated facts trial, the trial court found Heath guilty of unlawful possession of a controlled substance, cocaine, and operating a motor vehicle without an ignition interlock device. Heath appeals the denial of her suppression motion and her resulting conviction for unlawful possession of a controlled substance, cocaine.

ANALYSIS

I. ADMISSION OF CORN'S REPORT

Heath first argues that the trial court erred in admitting Corn's report under ER 104 and ER 1101 because the report was inadmissible hearsay and the trial court was required to resolve credibility issues at the suppression hearing. Specifically, Heath argues that the trial court should not have admitted the report because "there was a material disputed fact: did the defendant remove her backpack before or after the officer activated her emergency lights." Br. of Appellant at 13.

We need not reach this issue because, as discussed below, the trial court did not rely on Corn's report to resolve the disputed suppression issue.

II. EVIDENCE WAS PROPERLY ADMITTED UNDER THE TIME OF ARREST RULE

Heath argues that the trial court erred in refusing to decide the disputed issue of when Heath set her backpack down and in concluding that the search of her backpack was a lawful search incident to arrest under the time of arrest rule. We disagree.

A. LEGAL PRINCIPLES

1. Review Standard

We review the trial court's denial of a CrR 3.6 suppression motion by examining "whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law." State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). "Evidence is substantial when it is enough 'to persuade a fair-minded person of the truth of the stated premise.'" Garvin, 166 Wn.2d at 249 (quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)). We consider unchallenged findings of fact verities on appeal. Reid, 98 Wn. App. at 156. We review de novo the trial court's conclusions of law pertaining to the suppression of evidence. Garvin, 166 Wn.2d at 249.

2. Time of Arrest Rule

One exception to the warrant requirement is a search incident to arrest. Brock, 184 Wn.2d at 154. There are "two analytically distinct concepts" encompassed by this exception. Byrd, 178 Wn.2d at 617. "The first of these propositions is that 'a search may be made of the area within the control of the arrestee.'" Byrd, 178 Wn.2d at 617 (quoting United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)). "[T]he second proposition of the search incidentto arrest" allows for searches "'of the person of the arrestee by virtue of the lawful arrest.'" Byrd, 178 Wn.2d at 617 (emphasis omitted) (quoting Robinson, 414 U.S. at 224).

"[S]earches of an arrestee's person, including articles of the person such as clothing or personal effects, require 'no additional justification' beyond the validity of custodial arrest." Byrd, 178 Wn.2d at 617-18 (quoting Robinson, 414 U.S. at 235). "The authority to search an arrestee's person and personal effects flows from the authority of a custodial arrest itself." Byrd, 178 Wn.2d at 618 (citing Robinson, 414 U.S. at 232). "Washington law has long recognized the validity of searching a defendant and the property immediately within his or her control without a warrant in the process of making an arrest." State v. Ellison, 172 Wn. App. 710, 719, 291 P.3d 921 (2013).

In recent years, our Supreme Court has further refined the search of a person exception to the warrant requirement in Byrd and Brock. In Byrd, Byrd was arrested for possession of stolen property after a police officer confirmed that the car she was riding in had stolen license plates. 178 Wn.2d at 615. At the time of her arrest, she was sitting in the front passenger seat with her purse in her lap. Byrd, 178 Wn.2d at 615. Before removing Byrd from the car, an officer took Byrd's purse from her lap and placed it on the ground nearby. Byrd, 178 Wn.2d at 615. After placing Byrd in a patrol car, the officer searched the purse and discovered methamphetamine. Byrd, 178 Wn.2d at 615.

Our Supreme Court concluded that the search of the purse was lawful, holding that the search of a person exception extends to personal property "immediately associated" with the arrestee's person and concluding that the purse in question was immediately associated with Byrd's person at the time of arrest. Byrd, 178 Wn.2d at 621, 623. The court cautioned that this exception did not apply to all "articles within the arrestee's reach but not actually in his [or her]possession." Byrd, 178 Wn.2d at 623. Instead, the exception applied to "only those personal articles in the arrestee's actual and exclusive possession at or immediately preceding the time of arrest." Byrd, 178 Wn.2d at 623 (emphasis added). And the court limited such searches "only to articles 'in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person.'" Byrd, 178 Wn.2d at 623 (quoting United States v. Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurther, dissenting), overruled by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)).

Two years...