State v. Barron

285 P.3d 231, 170 Wash. App. 742
Court of Appeals of Washington·Decided September 18, 2012·No. No. 29787-0-III·Published·Cited by 10 cases

Opinion

Sweeney, J.

¶1 strip search requires probable cause to believe that evidence of a crime will be discovered, and it requires approval of a police supervisor. Here, the search was supported only by the defendant’s apparent nervousness. That is not enough. We reverse the conviction for possession of a controlled substance with intent to deliver.

FACTS

¶2 Officer Thomas Orth of the Sunnyside Police Department responded to a report of an assault with a knife on September 6, 2010. He arrived at the scene and found Gabriela Barron and three others standing in the front yard of a house. Ms. Barron was crying hysterically, and her knee was bleeding. She told Officer Orth that Melinda Garcia had chased her out of Ms. Garcia’s nearby house at knife point following a dispute over the supposed theft of $100 and that she injured her knee in the process.

¶3 Officer Orth asked Ms. Barron if she would sit in the backseat of his patrol car while he and another officer investigated. He explained that she was not under arrest at that time. Ms. Barron got in the back of the patrol car. Officer Orth took her purse and placed it in the secured front seat area of the car. Ms. Barron remained locked in the back of the patrol car for about 20 minutes.

¶4 Officer Orth spoke with Ms. Garcia and her roommate, Katie Everham. The two women confirmed that there [746] had been a physical altercation inside Ms. Garcia’s house over the missing money and that Ms. Barron was eventually chased out of the house. Ms. Garcia and Ms. Everham both denied the use of a knife. The investigating officers did not locate a knife or the money alleged to be stolen.

¶5 Officer Orth returned to his patrol car and arrested Ms. Barron for disorderly conduct. He then searched Ms. Barron’s purse, the purse he had placed in the front seat, and found two glass pipes with apparent drug residue and some unused “baggies.” Officer Orth took Ms. Barron to the Sunnyside Police Station to be booked.

¶6 Once at the station, Officer Orth instructed Dispatch Officer Mary Evialon to conduct a strip search of Ms. Barron for concealed narcotics. He was concerned by the number of unused baggies found in Ms. Barron’s purse and the fact that she was acting nervous and answering questions quickly. Officers Orth and Evialon did not seek a warrant or permission from a supervisor before they started to search Ms. Barron.

¶7 Officer Evialon took Ms. Barron to a changing room and explained the strip search procedure to her. She clarified that she would not “go hands on unless need be.” Report of Proceedings (Dec. 14, 2010) (RP) at 43. Ms. Barron began crying and stated that she wanted to come clean and had something concealed. Officer Evialon told Ms. Barron to start removing her clothes. Ms. Barron took off her pants and then repeatedly asked to use the restroom while grabbing her genitalia. Officer Evialon told her she could do so after she was changed but that the toilet would be inspected prior to flushing. Ms. Barron then pulled her underwear down and removed an envelope from her vagina. The envelope contained a $20 bill and pieces of aluminum foil containing six-tenths of a gram of methamphetamine.

¶8 Ms. Barron moved to suppress the various pieces of evidence on four separate grounds: (1) the initial detention in the back of the patrol car lacked any reasonable suspicion or lawful basis; (2) the arrest for disorderly conduct violated the [747] officer presence rule, which requires that a warrantless arrest occur in the presence of an officer; (3) the search of the purse fell outside of the search incident to arrest exception because it occurred after Ms. Barron was secured and there were no exigent circumstances; and (4) the strip search violated Washington law because it was conducted without a warrant or authorization from a supervisor.

¶9 The court ruled that Ms. Barron voluntarily entered the patrol car and that exigent circumstances surrounding the knife incident supported the officer’s request. The court also ruled that the arrest for disorderly conduct outside of the officer’s presence fell within the physical threat of harm exception to the officer presence rule. The court then ruled that the officer unlawfully searched Ms. Barron’s purse and suppressed that drug evidence. However, the trial court justified the strip search based on Officer Orth’s concern that Ms. Barron acted nervous following her arrest for disorderly conduct and the court refused to suppress the evidence discovered in that search.

¶10 The court found Ms. Barron guilty of possession of a controlled substance with intent to deliver following a stipulated trial. She appeals. The State does not appeal the court’s suppression of the drug evidence discovered in her purse.

DISCUSSION

Detention in the Patrol Car a Lawful Seizure

¶11 Ms. Barron contends the court erred by refusing to suppress all of the evidence obtained following her unlawful seizure in the patrol car. We review the denial of a suppression motion to determine whether substantial evidence supports the trial court’s findings and whether those findings support the conclusions. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review a trial court’s conclusions of law de novo. State v. Eisfeldt, 163 Wn.2d 628, [748]*748634, 185 P.3d 580 (2008). We also review de novo whether police conduct amounted to a seizure. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).

¶12 All police seizures of a person, including brief detentions, must be tested against the Fourth Amendment guaranty of freedom from unreasonable searches and seizures. U.S. Const, amend. IV; Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). A warrantless seizure is considered per se unreasonable unless it falls within one of the few exceptions to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). We start by determining whether a seizure actually occurred and, if it did, then whether it falls within an exception. State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003).

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State v. Barron, 285 P.3d 231, 170 Wash. App. 742 (Wash. Ct. App. 2012).

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