Opinion Information Sheet

			

                                                                               FILED
                                                                           MAR 20, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  30495-7-III
                                                )
                      Respondent,
                                                )         Division Three
              v.
                                                )
BLAKE CHARLES TAMBLYN,                                    PUBLISHED OPINION
                                                )
                      Appellant.
                                                )

                                                )

                                                )

                                                )

                                                )

       Brown, J. ? Blake C. Tamblyn appeals his controlled substance conviction. He 

contends the trial court erred in applying State constitutional privacy principles when

denying his CrR 3.6 motion to suppress evidence gathered from his vehicle after he 

had been handcuffed and placed in a patrol car following his driving under the 

influence (DUI) arrest.  Based upon case law changes since his August 2008 arrest, we  

No. 30495-7-III 
State v. Tamblyn  

agree with Mr. Tamblyn, and reverse.  

                                            FACTS

       On August 4, 2008, Washington State Trooper William Knudson was dispatched 

to locate a car driven erratically.  The trooper located a matching car, followed it, and 

saw driving behavior justifying a stop.  The trooper was concerned the car's driver 

could be impaired by drugs or alcohol.  When the trooper approached the car, he saw 

that the driver, Mr. Tamblyn, had pinpoint pupils and needle track marks on both 

forearms.  Based on his training and experience, Trooper Knudson recognized these 

signs indicated a person was using or under the influence of narcotics.  Trooper 

Knudson did not see any sign specifically indicating Mr. Tamblyn had been drinking 

alcohol.  Mr. Tamblyn agreed to perform field sobriety tests.  Mr. Tamblyn performed 

poorly on three of the four tests.  The one test Mr. Tamblyn performed satisfactorily was 

the horizontal gaze nystagmus test, designed to detect alcohol intoxication.  Based on 

his investigation, Trooper Knudson arrested Mr. Tamblyn for DUI.  The trooper

specifically believed Mr. Tamblyn was under the influence of a drug other than alcohol. 

       After arresting Mr. Tamblyn, Trooper Knudson handcuffed and secured him in 

the back of a patrol car.  The trooper derived probable cause to arrest Mr. Tamblyn for 

DUI without finding anything in the car and acknowledged he had no safety concerns 

during the incident.  Even so, Trooper Knudson returned to Mr. Tamblyn's car and 

searched it, following his then current training and understanding that he could lawfully

                                               2 

No. 30495-7-III 
State v. Tamblyn  

search the interior of an automobile incident to the arrest of the driver.  The trooper had 

conducted numerous similar DUI vehicle searches, and would regularly find narcotics, 

drug paraphernalia, or other drug-related contraband inside vehicles.  When searching 

Mr. Tamblyn's car, Trooper Knudson found a bag containing what Mr. Tamblyn 

admitted was heroin.  

       On August 7, 2008, the State charged Mr. Tamblyn with one count of unlawful 

possession of a controlled substance, heroin, and driving under the influence of a drug, 

heroin.  On March 17, 2010, Mr. Tamblyn moved pretrial under CrR 3.6 to suppress the 

heroin, arguing the search was improper under Arizona v. Gant, 556 U.S. 332, 129 S. 

Ct. 1710, 173 L. Ed. 2d 485 (2009), and progeny, decided after Mr. Tamblyn's arrest 

and pending trial.    

       On August 5, 2010, the trial court held a CrR 3.6 evidence suppression hearing 

and considered the above evidence to consider Mr. Tamblyn's argument that the 

warrantless car search was unlawful even if incident to a lawful arrest.  The State 

argued the search was lawful because Trooper Knudson arrested Mr. Tamblyn for a 

drug DUI and had reason to believe the car contained evidence of the crime of arrest.  

The trial court noted Trooper Knudson testified, "he searched the vehicle incident to 

arrest, not to look for further evidence." RP (Aug. 5, 2010) at 44.  Denying the motion, 

the court explained, "So, maybe this case I will get reversed on, I don't know, but I'll 

find that there was reasonable grounds to believe that evidence of the crime, Driving 

                                               3 

No. 30495-7-III 
State v. Tamblyn  

Under the Influence of Drugs, would reasonably be . . . found in the vehicle."  Id.  The 

trial court did not enter written findings of fact or conclusions of law. 

       On September 16, 2010, after a stipulated facts bench trial, the trial court found 

Mr. Tamblyn guilty of the controlled substance charge; the State dismissed the DUI 

charge; and, the court sentenced Mr. Tamblyn to 20 days in jail.  He appealed.  

                                          ANALYSIS

       The issue is whether, under these facts, the trial court erred by denying Mr. 

Tamblyn's CrR 3.6 evidence suppression motion under the privacy provisions of article 

I, section 7 of the Washington State Constitution.  

       We review a trial court's denial of a suppression motion to determine whether 

substantial evidence supports the challenged findings of fact and whether these 

findings support the trial court's conclusions of law.  State v. O'Neill, 148 Wn.2d 564, 

571, 62 P.3d 489 (2003).  When the appellant does not challenge any of the trial 

court's findings of fact, they are verities on appeal.  Id.  We review de novo the trial 

court's suppression hearing legal conclusions.  State v. Carneh, 153 Wn.2d 274, 281, 

103 P.3d 743 (2004).  

       Article I, section 7 of the Washington State Constitution provides, "No person 

                                               4 

No. 30495-7-III 
State v. Tamblyn  

shall be disturbed in his private affairs, or his home invaded, without authority of law."

This "right to be free from unreasonable governmental intrusion into one's 'private 

affairs' encompasses automobiles and their contents."  State v. Parker, 139 Wn.2d 486, 

494, 987 P.2d 73 (1999).  "[A]nalysis under article I, section 7 begins with the 

presumption that a warrantless search is per se unreasonable, unless it falls within one 

of the carefully drawn exceptions to the warrant requirement."  State v. Patton, 167 

Wn.2d 379, 386, 219 P.3d 651 (2009).  Even where probable cause to search exists, a 

warrant must be obtained unless excused under one of a narrow set of exceptions to 

the warrant requirement.  State v. Tibbles, 169 Wn.2d 364, 368-69, 236 P.3d 885 

(2010).  "These exceptions are limited by the reasons that brought them into existence; 

they are not devices to undermine the warrant requirement."  Patton, 167 Wn.2d at 386 

(citing State v. Ladson, 138 Wn.2d 343, 356, 979 P.2d 833 (1999)).  

       The relevant warrant exception is for automobile searches incident to arrest.  Id. 

at 386.  Historically, officer safety and the risk of destruction of evidence of the crime of 

arrest underpinned this warrant exception.  Id. (citing State v. Ringer, 100 Wn.2d 686, 

693-700, 674 P.2d 1240 (1983)).  The Patton court held the search of a vehicle incident 

to arrest "is unlawful absent a reasonable basis to believe that the arrestee poses a 

safety risk or that the vehicle contains evidence of the crime of arrest that could be 

concealed or destroyed, and that these concerns exist at the time of the search."  Id. at 

394-95.  Our Supreme Court clarified "the exception applies only when officers are 

                                               5 

No. 30495-7-III 
State v. Tamblyn  

unable to delay their search to obtain a warrant because the arrestee poses a threat to 

officer safety or the preservation of evidence."  State v. Swetz, 160 Wn. App. 122, 130-

31, 247 P.3d 802 (2011) (citing State v. Valdez, 167 Wn.2d 761, 777, 224 P.3d 751 

(2009)).  

       Relying on State v. Louthan, 158 Wn. App. 732, 242 P.3d 954 (2010), the State 

argues the Valdez clarification was dicta.  We disagree.  Gant, changed our legal 

landscape after Mr. Tamblyn's arrest and while his case was pending.  Patton and 

Valdez accurately state current authority for permissible warrantless automobile 

searches incident to arrest.  

       Our Supreme Court has yet to rule on a so-called "crime of arrest" exception; 

pending still is Division Two's decision in State v. Snapp, 153 Wn. App. 485, 219 P.3d 

971 (2009).  Even so, Snapp is unlike our case because Mr. Snapp did not challenge 

the search under article I, section 7.  Although Gant allows officers to search the 

vehicle when it is reasonable to believe there may be evidence of the crime of arrest, 

our Supreme Court "chose not to extend its own holding to include this justification."  

Swetz, 160 Wn. App. at 131-32.  

       Here, the State fails to meet its burden to show Trooper Knudson was in danger 

or a risk existed evidence could be concealed or destroyed while awaiting a warrant.  

Mr. Tamblyn was handcuffed and locked in the patrol car when Trooper Knudson 

searched his vehicle.  Mr. Tamblyn could not conceal or destroy evidence while a 

                                               6 

No. 30495-7-III 
State v. Tamblyn  

warrant was obtained.  Trooper Knudson acknowledged he did not fear for his safety. 

While Trooper Knudson did his best to follow then current law, the good faith exception 

to the exclusionary rule is inapplicable under article I, section 7.  State v. Afana, 169 

Wn.2d 169, 184, 233 P.3d 879 (2010).  Our Supreme Court has reasoned:

       "if a police officer has disturbed a person's 'private affairs,' we do 
       not ask whether the officer's belief that this disturbance was justified
       was objectively reasonable, but simply whether the officer had the
       requisite 'authority of law.' If not, any evidence seized unlawfully will
       be suppressed.  With very few exceptions, whenever the right of privacy
       is violated, the remedy follows automatically."

Afana, 169 Wn.2d at 180.  

       In sum, Mr. Tamblyn's privacy right under article I, section 7 of the Washington 

State Constitution was violated when the officer searched his car without a warrant. 

We hold the trial court erred in denying Mr. Tamblyn's CrR 3.6 suppression motion.  

       Reversed. 

                                                    _______________________________
                                                    Brown, J.

WE CONCUR:

___________________________                         _______________________________
Kulik, C.J.                                         Siddoway, J.

                                               7