Opinion Information Sheet

			

State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)
Dissent by J.M. Johnson, J.

                                         No. 84223-0

       J.M. JOHNSON, J.            (dissenting) -- Article I, section 7 of the 

Washington State Constitution affords greater protection for private affairs 

than does the Fourth Amendment to the United States Constitution, which 

protects against only  "unreasonable searches."  However, the majority

overstates such heightened protection in the context of lawful arrests.  A 

probable cause standard allowing officers to search for evidence relevant to 

the crime of arrest is constitutionally permissible.             This  requirement is

derivative of the long standing search incident to arrest exception in this 

court's decisions under article I, section 7 of our constitution.
       The officers in both State v. Snapp and State v. Wright1 had probable 

cause to believe evidence relevant to the crime of arrest might be found in the 

respective  vehicles.  Daniel  Snapp made a voluntary and noncustodial 

1 These cases were consolidated for review in this court.  State v. Snapp, 153 Wn. App. 
485, 219 P.3d 971 (2009); State v. Wright, 155 Wn. App. 537, 230 P.3d 1063 (2010). 

State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

admission that there was a "meth" pipe in the car. Strong evidence indicated 

to Officer Gregorio that marijuana would be found in Roger Wright's car.  

Officer Gregorio could smell a strong odor of marijuana coming from the 

vehicle, noticed a large roll of money in plain view, and obtained a voluntary 

admission from Wright, after Miranda2 rights had been waived, that Wright 

had been smoking marijuana.  Thus, I would affirm the Court of Appeals and 

the convictions in both cases and respectfully dissent.

A.     Legal Standard

       This court's case law in the area of search of automobiles incident to 

arrest has been characterized by a number of changes in direction.  The court 

nearly a century ago held  that  "a peace officer, when he makes a lawful 

arrest, may lawfully, without a search warrant, search the person arrested and 

take from him any evidence tending to prove the crime with which he is 

charged."  State v. Hughlett, 124 Wash. 366, 370, 214 P. 841 (1923) (dealing 

with search of an automobile), overruled (50 years later) by State v. Ringer, 

100 Wn.2d 686, 674 P.2d 1240 (1983).

       We also extended this assertion to include the person's grip or suitcase

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

and the interior compartment of the automobile.  Id. This holding recognized 

that "the person arrested has the immediate physical possession, not only of 

the grips or suit cases which he is carrying, but also of the automobile which 

he is driving and of which he has control."  Id.          Rather than relying on the 

mobility of the vehicle as had United States Supreme Court cases creating a 

lower expectation of privacy, e.g., Arizona v. Gant, 556 U.S. 332, 343, 129 

S. Ct. 1710, 173 L. Ed. 2d 485 (2009); Thornton v. United States, 541 U.S. 

615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (Scalia, J., concurring), 

this statement of law was  a  logical consequence of the  recognized search-

incident-to-arrest exception.

       This court then reversed Hughlett in State v. Ringer, 100 Wn.2d 686, 

674 P.2d 1240 (1983).  The Ringer majority held that "[a] warrantless search 

[after a lawful arrest is made] is permissible only to remove any weapons the 

arrestee might seek to use in order to resist arrest or effect an escape and to 

avoid destruction of evidence by the arrestee of the crime for which he or she 

is arrested."  Id. at 699.

       Three years later, the court changed direction again in State v. Stroud, 

106 Wn.2d 144, 720 P.2d 436 (1986), which overruled Ringer and held that 

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State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

"officers should be allowed to search the passenger compartment of a vehicle 

for weapons or destructible evidence."  Id. at 152.  The period for which the 

passenger compartment could be searched included "the time immediately 

subsequent to the suspect's being arrested, handcuffed, and placed in a patrol 

car."  Id. A limitation was that officers could not search a locked container or 

locked glove compartment without obtaining a warrant.  Id.

       After Gant, the court reversed course yet again in State v. Valdez, 167 

Wn.2d 761, 224 P.3d 751 (2009), which overruled Stroud and returned to a 

rule similar to that in Ringer.  See id. at 777.  The court recognized, however, 

that "[a] warrantless search of an automobile is permissible under the search 

incident to arrest exception when that search is necessary to preserve officer 

safety or prevent destruction or concealment of evidence of the crime of 

arrest."  Id.

       Rather than continuing  vacillation of our case law, i.e., Valdez, I 

believe we should adopt analyses derived from our constitution and historical

case law.  We should recognize the goals of clarity for law enforcement and 

citizens  and  heightened protection  of individual liberties under article I, 

section 7 of our constitution.   Such a rule of law would allow a search 

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State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

incident to lawful arrest when there is probable cause to believe evidence 

relevant to the crime of arrest will be found in the vehicle.

       This rule of law provides clarity to law enforcement because officers 

are trained to be familiar with the probable cause standard.  Officers may 

conduct a search only under specific conditions after the suspect has been 

arrested, handcuffed, and placed in a patrol car.  Additionally, this approach 

preserves heightened protections  under article I, section 7 because the 

probable cause standard is a higher bar of protection than the reasonable 

belief standard under the Fourth Amendment to the United                          States

Constitution.   Thus, a probable cause standard for evidence relevant to the 

crime of arrest is  more  consistent with constitutional principles than 

eliminating  the relevant evidence prong continued in the  United  States

Supreme Court's Gant analysis.

B.     Probable Cause

       Here, the officers in both cases had probable cause to search vehicles

for evidence relevant to the crime of arrest.  Snapp was lawfully arrested for 

use of drug paraphernalia because he made a voluntary and noncustodial 

admission that there was a "meth" pipe in the car.  As a result, Trooper Pigott

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State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

had probable cause to search the car for the "meth" pipe.

       Strong evidence also  provided  Officer Gregorio probable cause to 

conclude that marijuana would be found in Wright's car.  Wright was arrested 

under suspicion of possession of marijuana with intent to distribute.  Officer 

Gregorio could smell a strong odor of marijuana coming from the vehicle, 

noticed Wright's apparent nervousness and a large roll of money in the glove 

compartment in plain view, and obtained a voluntary admission from Wright

(after his Miranda rights had been waived) that he had been smoking 

marijuana.  These facts provided probable cause to justify a search of each 

vehicle for evidence relevant to the crime of arrest.

                                      Conclusion

       I would affirm the Court of Appeals and the convictions in both cases.  

As opposed to the majority's new standard, I would have this court recognize 

that the constitution allows a search incident to lawful arrest when there is 

probable cause to believe evidence relevant to the crime of arrest will  be 

found in the vehicle.  The defendant's own words in Snapp provided the 

requisite probable cause, and strong evidence provided the requisite probable 

cause in Wright.  Thus, I would uphold the search, admission of the evidence, 

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State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

and convictions of both defendants.         Because the majority holds otherwise 

and continues a confusing analysis justified neither by our constitution nor by 

relevant precedent, including that of the United States Supreme Court, I 

respectfully dissent.

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State v. Snapp/Wright, No. 84223-0 (consol. w/ No. 84569-7)

       AUTHOR:

                Justice James M. Johnson

       WE CONCUR:

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