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2013 OCT 28 Hi 12: 13
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68444-2-1 Respondent, DIVISION ONE v.
PETER JAMES GREEN, PUBLISHED OPINION
Appellant. FILED: October 28. 2013
Spearman, A.C.J. — Peter Green hit a pedestrian while driving his car and
was arrested for suspected driving under the influence. After his arrest, police
conducted a warrantless search of his car and found a number of receipts that
were later determined to be evidence of purchases using stolen credit card
numbers. Under State v. Snapp. 174 Wn.2d 177, 275 P.3d 289 (2012), the
receipts were not admissible in his trial for identify theft and theft as the product
of a vehicle search incident to arrest. The issue before us is whether the receipts
were nonetheless admissible either (1) as the product of a lawful inventory
search or (2) under the independent source doctrine. We hold that the scope of
the inventory search did not extend to the police officer's seizure of the receipts.
We also hold that the receipts were not admissible under the independent source
doctrine because they were seized during the initial warrantless search and were No. 68444-2-1/2
not found through an independent source. The trial court's denial of Green's
suppression motion was error. We reverse and remand.
FACTS
Around 10:00 p.m. on January 4, 2008, Peter Green was driving his Jeep
Cherokee when he collided with a pedestrian, who died soon afterward. Seattle
Police Department (SPD) officers arrived at the scene and took a statement from
Green. Suspecting him of driving under the influence, they arrested him and
transported him to a hospital for a blood draw.
Green's car was towed to the SPD storage facility that night. Before it was
towed, Detective Thomas Bacon searched the car. In the rear cargo area, Bacon
found a new television inside its carton. He looked inside a paper bag on the
front passenger floor and found two receipts. Removing them from the bag, he
examined the receipts and observed that they were for purchases made that day
at two Sears stores. One receipt was for the purchase of a television with three
$500 Sears gift cards at the Redmond Sears. The other was for disposable cell
phones purchased at the Sears in downtown Seattle with a Sears gift card.
Bacon also found a plastic Sears bag containing two disposable cell phones. It
was suspicious to him that the receipts showed the television and phones had
been purchased with large denomination gift cards at two different stores. He
seized the receipts and phones.
Bacon began conducting parallel investigations for vehicular homicide and
theft/fraud. He contacted the Redmond Sears and discovered that the three $500 No. 68444-2-1/3
gift cards had been purchased in Portland, Oregon, along with another $1,500 in
gift cards. The credit card number used to purchase the gift cards belonged to
Laurie Johnson, who had not authorized the purchases. Other unauthorized
purchases of Sears gift cards had been made using the credit card of Richard
Burnett.
On January 30, Bacon obtained a warrant to search Green's car for
evidence in the vehicular homicide investigation. His affidavit referenced his
initial search but did not mention what he discovered. The warrant authorized a
search of the car for evidence of drug and alcohol use, "papers of dominion and
control," and evidence relating to the identity of an unknown male passenger
seen leaving the car immediately after the collision.1 Clerk's Papers (CP) at 76. While executing the search warrant on January 31, Bacon found a backpack in
the back seat. Inside the backpack, he found five credit cards, all with the name
Jeanne Russell. Bacon looked at the front and back of the credit cards. While the
cards appeared to be fraudulent because they had no security codes, Bacon
believed he could not seize them under the warrant. He replaced the cards in the
backpack and left the backpack in the car.
On February 8, Bacon obtained a second warrant to search the car for
evidence related to fraud or identity theft. His affidavit summarized his initial
search and his search under the first warrant. It included details about Green's
1Witnesses stated weeks after the accident that an unknown male passenger had walked away from the scene. This person was never identified. No. 68444-2-1/4
prior criminal history; Green had previously been convicted of identity theft after
attempting to use a fraudulently obtained credit card to buy a television at Sears.
He was also a person of interest in a separate fraud investigation. After seizing
the five credit cards under the second warrant, Bacon determined that the cards
with Russell's name did not belong to a person by that name. Three of the credit
card numbers belonged to Moretha Harding, Natasha Koterly, and Hoang Dang,
all of whom lived outside of Washington.2 Bacon learned that Johnson, Burnett,
Harding, Koterly, and Dang had all purchased airline tickets from Northwest
Airlines, where Green worked.
The State charged Green with theft in the second degree (Count V: theft
of television) and five counts of identity theft in the second degree (Count I: victim
Johnson; Count II: victim Harding; Count III: victim Koterly; Count IV: victim
Dang; Count VI: victim Burnett).3 At trial, the State introduced evidence ofthe credit cards and receipts and evidence that the television had been purchased
with gift cards Green had bought with Johnson's credit card number. Green's
former manager at Northwest Airlines testified that his job gave him access to
customers' credit card numbers. Northwest's computer records showed Green
had accessed the victims' credit card information. The parties stipulated that the
2 The other two credit card numbers were fake.
3The State also charged Green with driving while under the influence, which was severed for trial. Green was acquitted of that charge. No. 68444-2-1/5
out-of-state victims4 did not know Green or give him permission to use their credit card information. The jury convicted Green as charged.
In Green's first appeal, he challenged in pertinent part the initial
warrantless search of his car under Arizona v. Gant. 556 U.S. 332, 129 S.Ct.
1710, 173 L.Ed.2d 485 (2009), which had not been decided before trial. The
United States Supreme Court held in Gant that police may search a vehicle
incident to a recent occupant's arrest only if (1) the arrestee is within reaching
distance of the passenger compartment at the time of the search or (2) it is
reasonable to believe the vehicle contains evidence of the crime of arrest. icL at
351. Absent these justifications, a vehicle search is unreasonable unless police
obtain a warrant or another exception to the warrant requirement applies. Id. This
court, in an unpublished opinion, remanded for a hearing on the impact of Gant
on the initial search. State v. Green, 162 Wn. App. 1069, 2011 WL 3244724
(2011).
On remand, the State argued the evidence found in the warrantless
search was admissible (1) under Gant, because Bacon was looking for evidence
of the crime of arrest; (2) as the product of an inventory search; and (3) under the
independent source doctrine. Bacon testified at the remand hearing. The trial
court denied the motion to suppress. It found that Bacon's warrantless search
was made for both inventory and investigatory purposes but that the receipts
specifically were found only as part of the investigatory search incident to
4Johnson, Harding, Koterly, Dang, and Burnett. No. 68444-2-1/6
Green's arrest. It ruled that the warrantless search and the seizure of the receipts
was valid under Gant and State v. Patton. 167 Wn.2d 379, 394-95, 219 P.3d 651
(2009) (vehicle search incident to recent occupant's arrest is unlawful unless, at
time of search, there is reasonable basis to believe arrestee poses safety risk or
that vehicle contains evidence of crime of arrest that could be concealed or
destroyed). It did not rule on the independent source doctrine.
Subsequently, the Washington Supreme Court held that article I, section 7
of the Washington State Constitution does not permit a warrantless vehicle
search incident to arrest based on a belief that evidence of the crime of arrest
might be found in the vehicle.5 Snapp, 174 Wn.2d at 190-91. Green now appeals the trial court's ruling on remand in light of Snapp.
DISCUSSION
We review a trial court's denial of a motion to suppress to determine
whether substantial evidence supports the challenged factual findings and, if so,
whether factual findings support the conclusions of law. State v. Garvin, 166
Wn.2d 242, 249, 207 P.2d 1266 (2008). Conclusions of law are reviewed de
novo. State v. Winterstein. 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).
5The court explained: Contrary to the urgency attending the search incident to arrest to preserve officer safety and prevent destruction or concealment of evidence, there is no similar necessity associated with a warrantless search based upon either a reasonable belief or probable cause to believe that evidence of the crime of arrest is in the vehicle.
Snapp. 174 Wn.2d at 195-96. No. 68444-2-1/7
Under the Fourth Amendment to the United States Constitution6 and
article I, section 7 of the Washington State Constitution, warrantless searches
and seizures are per se unreasonable, with few exceptions. Gant, 556 U.S. at
338-39; Snapp, 174 Wn.2d at 187-88. The State must show that an exception to
the warrant requirement applies by clear and convincing evidence. State v.
Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266 (2009).
Only the admission of the receipts is at issue. The State concedes the
receipts are not admissible under Snapp as the product of a vehicle search
incident to arrest. The concession is well taken. The State contends the receipts
are nonetheless admissible (1) as the product of an inventory search and (2)
under the independent source doctrine. We address the contentions in turn.
Inventory Search
One exception to the warrant requirement is an inventory search
accompanying a lawful vehicle impound. State v. Ladson, 138 Wn.2d 343, 349,
979 P.2d 833 (1999); State v. White, 135 Wn.2d 761, 769-70, 958 P.2d 982
(1998). The principal purposes of an inventory search are to (1) protect the
vehicle owner's property; (2) protect the police against false claims of theft by the
owner; and (3) protect the police from potential danger. White, 135 Wn.2d at 769-
70 (citing State v. Houser, 95 Wn.2d 143, 154, 622 P.2d 1218 (1980)). The
direction and scope of an inventory search "must be limited to the purpose
6The Fourth Amendment applies to the states through the Fourteenth Amendment. U.S. Const. Amend. XIV; Mapp v. Ohio. 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). No. 68444-2-1/8
justifying the exception: finding, listing, and securing from loss during detention
the property of the person detained, and protection of police and bailees from
liability due to dishonest claims of theft." Ladson. 138 Wn.2d at 372.
Here, the trial court made the unchallenged determinations that the
impoundment was lawful and that Bacon had an investigatory purpose and an
inventory purpose in conducting the initial warrantless search. The court further
concluded:7
The purposes of an inventory search pursuant to vehicle impound are to protect the owner's property and the police department from false claims of theft, and to remove potentially dangerous property for the safety of others. The receipts found in the paper bag were not part of the inventory search, but the investigatory search incident to the defendant's arrest.
CP at 209-10.
The State contends this conclusion was error.8 It argues that because Bacon properly looked inside the bag pursuant to the inventory search, anything
he found therein was properly seized. In support of this proposition, the State
relies on State v. Montague, 73 Wn.2d 381, 438 P.2d 571 (1968), but that case is
distinguishable.
7While the trial court labeled this conclusion as a finding of fact, we agree with the State that it is more appropriately reviewed as a conclusion of law that the scope of the inventory search did not extend to the examination of the receipts. Conclusions of law mislabeled as findings of fact are reviewed as conclusions of law. Willenerv. Sweeting, 107 Wn.2d 388, 394, 730P.2d45(1986).
8Green contends the State waived any argumentthat the receiptswere discovered during an inventory search because it did not cross appeal the trial court's determination that the receipts were not part of the inventory search. We disagree. Because the State is not requesting affirmative relief, it may argue any grounds supported by the record to sustain the trial court's order. State v. Bobic. 140 Wn.2d 250, 257, 996 P.2d 610 (2000) (citing RAP 2.4(a); 5.1(d)).
8 No. 68444-2-1/9
In Montague, the defendant, Robert Montague, was driving a car at night
with only one headlight. kiL at 382. When he was stopped by a police officer he
was unable to produce a valid driver's license or registration for the car. jd. at
382-83. Montague was placed under arrest and, pursuant to police procedure,
the car was impounded, jd. at 383. Prior to impoundment, police procedure
required the car to be searched for valuables and any valuables found to be
listed on a property card. Id. While conducting the search, the officer examined a
brown paper bag on the floor of the car and found it contained eight small plastic
bags filled with what appeared to be marijuana. kL Montague's motion to
suppress the marijuana was denied and he was convicted of unlawful possession
of the substance. \_± at 382-83. On appeal, the Washington Supreme Court
affirmed the conviction, stating:
When ... the facts indicate a lawful arrest, followed by an inventory of the contents of the automobile preparatory to or following the impoundment of the car, and there is found to be reasonable and proper justificationfor such impoundment, and where the search is not made as a general exploratory search for the purpose of finding evidence of a crime but is made for the justifiable purpose of finding, listing, and securing from loss, during the arrested person's detention, property belonging to him, then we have no hesitancy in declaring such inventory reasonable and lawful, and evidence of crime found will not be suppressed.
jcL at 385. Thus, in Montague, the officer, while conducting a lawful inventory
search, properly looked into the paper bag, recognized the marijuana as
evidence of a crime, and lawfully seized it. That is not the circumstance
presented here. No. 68444-2-1/10
In this case, Bacon did not recognize the receipts as either items subject
to inventory or as evidence of a crime. While he properly looked inside the bag to determine whether it contained anything of value, Bacon testified that he did not
consider the receipts to be relevant to his inventory search and there is no
evidence that he did, in fact, inventory them. Bacon also candidly admitted that
his seizure of the receipts was for investigatory purposes and that he "really
didn't know at that point" whether the receipts were evidence of any criminal
activity. Verbatim Report of Proceedings (VRP) (1/6/2012) at 40-41. Thus, the
record supports the trial court's determination that the seizure of the receipts
exceeded the lawful scope of the inventory search and became an investigatory
search, unsupported by any exception to the warrant requirement. We affirm the
trial court's ruling that the receipts were not admissible under the inventory
search exception.
Independent Source Doctrine
Where police seize evidence pursuant to an unlawful search, the
exclusionary rule prohibits introduction of the evidence seized. Murray v. United
States. 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); State v.
O'Bremski. 70 Wn.2d 425, 428, 423 P.2d 530 (1967). The rule also prohibits the
admission of evidence that is the product of the unlawfully acquired evidence, "up
to the point at which the connection with the unlawful search becomes so
attenuated as to dissipate the taint." Murray. 487 U.S. at 536-37 (internal
quotation marks and citation omitted). Under the independent source exception,
10 No. 68444-2-1/11
however, "evidence tainted by unlawful governmental action is not subject to suppression under the exclusionary rule, provided that it ultimately is obtained
pursuant to a valid warrant or other lawful means independent of the unlawful
action." State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). The
Washington Supreme Court has explained, "This result is logical. According to
the plain text of article I, section 7, a search or seizure is improper only if it is
executed without 'authority of law.' But a lawfully issued search warrant provides
such authority." jd.
The independent source doctrine differs from the inevitable discovery
doctrine, which Washington does not recognize. Winterstein. 167 Wn.2d at 636
(inevitable discovery doctrine incompatible with article I, section 7); State v.
O'Neill, 148 Wn.2d 564, 592, 62 P.3d 489 (2003) (inevitable discovery exception
would create no incentive for State to comply with article I, section 7). While the
independent source doctrine recognizes that probable cause may still exist
based on legally obtained information after excluding the illegally obtained
information, the inevitable discovery doctrine is speculative and does not
disregard illegally obtained evidence. State v. Afana, 169 Wn.2d 169, 181, 233
P.3d 879 (2010). We have stated:
Whereas the inevitable discovery doctrine requires a speculative analysis of whether the police would have ultimately obtained the same evidence by other lawful means, the independent source exception contains no similar speculative considerations. Rather than considering whether the police would have found the same evidence by lawful means, the independent sources exception
11 No. 68444-2-1/12
requires considering if evidence is tainted by earlier unlawful government actions.
State v. Smith. 165 Wn. App. 296, 310, 266 P.3d 250 (2011) (internal citation
omitted) (rev. granted. 173 Wn.2d 1034, 277 P.3d 669 (2012)).9 We hold that the receipts are not admissible under the independent
source doctrine. Neither the receipts nor knowledge of them were in fact found
through an independent source. The receipts were not found while executing the
first search warrant; the State only contends they would have been had they not
been seized during the initial search. But the State's argument requires this court
to engage in the inevitable discovery doctrine's "speculative analysis of whether
the police would have ultimately obtained the same evidence by other lawful
means " Smith. 165 Wn. App. at 310.
The State relies primarily on a Third Circuit Court of Appeals decision,
United States v. Herrold. 962 F.2d 1131 (3d Cir.) to support the proposition that
even evidence unlawfully seized and kept in police custody (in Herrold, a loaded
9The United States Supreme Court has described the inevitable discovery doctrine as "an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." Murray, 487 U.S. at 539.
12 No. 68444-2-1/13
10 gun) may, nonetheless, be admissible under the independent source exception
The State also cites a Seventh Circuit decision, United States v. May, 214 F.3d
900 (7th Cir.) (2000), noting that there, evidence of cash was properly admitted
under the independent source doctrine where the cash had been illegally seized
but a valid search warrant issued the following day gave an independent basis
for its seizure.11
10 In Herrold, police officers made an initial unlawful entry into a trailer and saw drugs and a loaded gun in plain view. Herrold, 962 F.2d at 1134. They waited for a search warrant to seize the drugs but apparently seized the gun during the initial entry. Id at 1134-35. The search warrant affidavit included observations of the gun and drugs inside the trailer. Id at 1135. They executed a search warrant later that night and seized the drugs. Id. The Third Circuit held that the drugs and gun were admissible under the independent sourcedoctrine because, even excluding information obtained during the initial entry, the warrantwas still supported by probable cause. Id at 1140-44. The court concluded that although the gun was seized during the illegal entry, it should be treated as seized under the search warrant, which specifically authorized the seizure of firearms. id at 1143. The court stated:
Itwould be dangerous to require officers to leave a fully-loaded, semi automaticweapon unsecured until they obtained a warrant, and senseless to require the formality of physically re-seizing the gun already seized during the initial entry. Thus, the only logical implication under Murray is that the gun is as admissible under the independent source doctrine as the other, non- dangerous evidence, seen during the initial entry but not seized until the warrant-authorized search. Id,
11 In May, defendants Terry and May were under investigation for bank robbery and an unrelated drug matter. May, 214 F.3d at 902-03. Police officers seized cash from their residence while serving a state search warrant for the drug matter, id. at 903. The next day, based on statements of the defendants' roommate, officers obtained a federal search warrant that "authorized the search of the shed behind [the defendants'] house, but also the money seized in the initial search "Id at 903 n.9. In the bank robbery trial, they sought to suppress the cash on the basis that the state search warrant did not authorize the seizure of the money because the warrant authorized the seizure of money "found in close proximity to" drugs and drug paraphernalia but the latter items were not found during the search. The trial court found that the officers investigating the bank robbery would have sought thefederal search warrant even if the cash had not been seized. Jd at 904. On appeal, the defendants argued that the cash should be suppressed because the federal search warrant was a "direct result" of the illegal seizure of the cash, id at 905. The Seventh Circuit agreed with the trial court that the officers would have sought and obtained a federal search warrant absent any reference to the initial discovery of the cash, giving an independent source for the seizure ofthe money, id at 906-07.
13 No. 68444-2-1/14
The State contends that, like the gun in Herrold and the cash in May, the
receipts are untainted by the warrantless search because the first search warrant
provided an independent source for them. It contends that because Bacon
sought the warrant to further the vehicular homicide investigation, he would have
sought the first warrant even had he not conducted the initial warrantless search.
Herrold and May, however, are distinguishable. The valid warrants in
Herrold and May specifically authorized the search and seizure of the evidence
at issue (the gun and cash), providing a clear independent source to seek and
seize the evidence. Here, in contrast, the State seeks to have the independent
source doctrine apply on the basis of the first search warrant, which did not
specifically seek receipts in connection with a fraud investigation but rather
authorized the search and seizure of evidence related to vehicular homicide.
Furthermore, the State's contention that the first warrant provides an
independent source for the receipts requires speculation that the officers would
have looked in the paper bag, while carrying out the first search warrant,
examined the receipts, and become suspicious that they were evidence of
another crime while seeking evidence of the vehicular homicide.12 In sum, the connection between the receipts and the first search warrant is attenuated and
12 Green challenges the trial court's finding that had Bacon notseized the receipts during the warrantless search, he would have found the receipts inside the paper bag during his search pursuant to the first warrant. Regardless of whether this finding is supported by substantial evidence, it does not support the conclusion that the search is admissible under the independent source doctrine because it is the type of speculative finding that, as we have explained, is not permitted by the independent source doctrine.
14 No. 68444-2-1/15
speculative, unlike in Herrold and May. We agree with Green that what the State
actually asks us to apply here is the inevitable discovery doctrine.
We reverse the trial court's ruling on the suppression motion and remand
for further proceedings.
Reversed and remanded.
WE CONCUR: fl1
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