Opinion
No. 57568-6-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for Island County, No. 05-1-00072-5, Vickie I. Churchill, J., entered December 20, 2005.
Affirmed by unpublished opinion per Coleman, J., concurred in by Appelwick, C.J., and Becker, J.
The principal issue in this case is whether the smell of marijuana, detected by a trooper making a routine traffic stop, justifies a warrantless search of a vehicle under the exigent circumstances exception to the warrant requirement where the vehicle was mobile, the trooper alerted the defendant that he smelled marijuana and could not find its source, the trooper was alone in a rural area, and it was late at night. A secondary issue is whether the superior court's decision upholding the search conflicts with State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003), which held that "a valid custodial arrest is a condition precedent to a search incident to arrest[.]" O'Neill, 148 Wn.2d at 587. We conclude that exigent circumstances justified the warrantless search of the vehicle and that the superior court's decision does not conflict with O'Neill because this case does not involve a search incident to arrest.
FACTS
On October 28, 2004, near midnight, Trooper Norman Larsen, working alone in Island County, stopped Micah Tibbles for a defective taillight. The propriety of the stop is not challenged. Tibbles was alone in the vehicle. Trooper Larsen noticed a strong odor of marijuana coming from the vehicle. Tibbles provided Trooper Larsen with his drivers license but could not find any registration or proof of insurance. Trooper Larsen asked Tibbles to step out of the vehicle and advised him that he smelled marijuana. Tibbles denied possessing any marijuana. Trooper Larsen searched him and found no marijuana. He asked Tibbles if he had smoked marijuana that day, and Tibbles said no. Trooper Larsen then searched the interior of the vehicle and under the front seat found a glass pipe and marijuana, which Tibbles denied belonged to him. Trooper Larsen did not formally arrest Tibbles, but instead issued him a citation and allowed him to drive away.
Before trial, Tibbles moved to suppress the evidence seized by Trooper Larsen. The district court denied the motion, finding that "the prosecutor might be able to establish that the warrantless search was reasonable in this instance under the probable cause/exigent circumstances exception." In a trial on stipulated facts, the court found Tibbles guilty of unlawful possession of marijuana and possession of drug paraphernalia.
Tibbles appealed to the superior court. The superior court affirmed, concluding that the mobility of the vehicle and the potential for the destruction of the evidence constituted exigent circumstances justifying a warrantless search. Tibbles sought discretionary review of the RALJ decision, which was granted.
ANALYSIS
Tibbles argues that exigent circumstances did not justify Trooper Larsen's warrantless search of the vehicle. We conclude that there were exigent circumstances justifying Trooper Larsen's warrantless search: the mobility of the vehicle, the risk that Tibbles would destroy evidence because he was alerted to Trooper Larsen's suspicion that he had marijuana, the time of night, the rural location of the traffic stop, and the fact that Trooper Larsen was alone.
Absent an exception, a warrantless search is impermissible under article 1, section 7 of the Washington Constitution. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). The exceptions are carefully circumscribed and provide for those cases where the societal costs of obtaining a warrant outweigh the reasons for recourse to a magistrate. State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). Washington has identified five circumstances that qualify as being exigent: (1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983). The State bears the burden of showing that an exception applies. State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001).
Article 1, section 7 of the Washington Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Tibbles only argues that his state constitutional rights were violated and does not make an argument under the federal constitution.
In State v. Hammond, 24 Wn. App. 596, 603 P.2d 377 (1979), the court held that an officer who is trained to detect the odor of marijuana can arrest and search a person at a traffic stop when the odor is present. The court declined to decide whether the search was justified based on probable cause and exigent circumstances. Instead, the court held that the search was valid as a search incident to arrest. In State v. Huff, 33 Wn. App. 304, 654 P.2d 1211 (1982), police had a warrant to search all real and personal property at a certain residence. The police searched a vehicle parked at the residence and found marijuana. The defendant argued that the search was not authorized by the warrant and that no exception to the warrant requirement justified the search. The court held that the vehicle was included in the warrant and then stated,
Tibbles stated in the superior court that he was not disputing that Trooper Larsen had probable cause to arrest based on the odor of marijuana. Verbatim Report of Proceedings (Dec. 7, 2005) at 7.
[A]ssuming arguendo the warrant did not authorize a search of Mr. Huff's automobile, a warrantless search of an automobile is constitutionally permissible if there is probable cause to search the automobile which is stopped, the car is movable, the occupants are alerted, and contents of the car may never be found again if a warrant must first be obtained.
Huff, 33 Wn. App. at 310.
The warrantless search here was justified because of exigent circumstances. Trooper Larsen told Tibbles that he smelled marijuana. Tibbles denied possessing marijuana or consuming any marijuana that day. Trooper Larsen searched Tibbles, but did not find any marijuana. Trooper Larsen then had probable cause to believe marijuana was in the vehicle because he had not discovered the source of the marijuana smell. A warrantless search was necessary because of the mobility of the vehicle and the likelihood that the evidence would be removed or destroyed. Additionally, it was late at night in a rural area and Trooper Larsen was alone, making it difficult to obtain a warrant.
Tibbles argues that exigent circumstances did not justify the search because the district court stated in its entry of judgment that there was no "evidence offered as to the exigent circumstances justifying a warrantless search." Tibbles stipulated to all of the exigent circumstances discussed above — mobility of the vehicle, Tibbles being told by Trooper Larsen that he suspected marijuana was in the vehicle, time of night, and other factors relied on by the court. Therefore, exigent circumstances were established based upon the stipulated facts.
Tibbles contends that the possession of a misdemeanor amount of marijuana is not serious enough to overcome the privacy protections of the Washington Constitution, relying on State v. Ramirez, 49 Wn. App. 814, 746 P.2d 344 (1987). In Ramirez, police entered a hotel room without a warrant after detecting a strong odor of marijuana emanating from the doorway. The State argued that the entry was permissible based on the probable cause and exigent circumstances exception to the warrant requirement. The court agreed that the officers had probable cause but held that exigent circumstances did not exist to justify the officers' warrantless entry into the hotel room. The court explained that hotel rooms enjoy the same constitutional protection as homes. Ramirez, 49 Wn. App. at 817. The court also noted that the use or possession of marijuana is a misdemeanor. The court then held that under the federal and state constitutions, "the State's interest in preventing these crimes, though important, is not of sufficient magnitude to justify this warrantless entry and arrest" in an area entitled to the same protection as a home. Ramirez, 49 Wn. App. at 821.
Ramirez is distinguishable because it involved exigent circumstances in the context of a hotel room, not a vehicle. Article 1, section 7 protects vehicles, but historically, vehicles enjoy less protection than homes because "[o]ne does not expect the same degree of privacy in an automobile as in one's home." State v. Stroud, 106 Wn.2d 144, 167, 720 P.2d 436 (1986) (Durham, J., concurring).
In Ramirez, there was no risk of the defendants suddenly fleeing in a vehicle or purposefully destroying the evidence because they had not been alerted to the fact that police officers suspected drug activity. Here, there were such risks because Trooper Larsen alerted Tibbles that he smelled marijuana and the vehicle Tibbles was driving was mobile. And though this case involves misdemeanors, Tibbles cites no authority stating that in misdemeanor cases, police officers are prohibited from searching a vehicle under the exigent circumstances exception of the warrant requirement. The fact that the crimes at issue here are misdemeanors is not sufficient to overcome the exigent circumstances faced by the officer. Moreover, based on the smell alone, the officer could not know there was only a misdemeanor amount of marijuana in the vehicle.
Tibbles also relies on State v. Chrisman, 100 Wn.2d 814, 676 P.2d 419 (1984) for his argument that the possession of a misdemeanor amount of marijuana is not serious enough to overcome the privacy protections of the Washington Constitution. Like Ramirez, however, Chrisman is distinguishable because it involved a dorm room, which the court treated as a home. See Chrisman, 100 Wn.2d at 822 ("The heightened protection afforded state citizens against unlawful intrusion into private dwellings places an onerous burden upon the government to show a compelling need to act outside of our warrant requirement."). And unlike this case, the Chrisman court found that there was no danger of the evidence being destroyed. Chrisman 100 Wn.2d at 821 ("Neither the officer nor the evidence was threatened.").
Tibbles also argues that the superior court's decision conflicts with State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). In O'Neill, the court held that "a valid custodial arrest is a condition precedent to a search incident to arrest [.]" O'Neill, 148 Wn.2d at 587. O'Neill is not relevant to this case because it did not concern vehicle searches based on exigent circumstances. The parties agree that the district court and superior court concluded that the search in this case was constitutional because of exigent circumstances — not as a search incident to arrest.
Tibbles essentially argues that O'Neill eliminated the exigent circumstances exception to the warrant requirement in the context of vehicle searches and, therefore, because Trooper Larsen had probable cause, he should have obtained a search warrant or made an arrest and searched the vehicle incident to the arrest. O'Neill concerned a parked vehicle and did not discuss exigent circumstances. It did not eliminate the exigent circumstances exception to the warrant requirement in the context of vehicle searches. We are reluctant to require police officers to make full custodial arrests in order to perform warrantless searches of vehicles. Therefore, we reject Tibbles' proposed rule that officers must search incident to an arrest in order to search a vehicle without a warrant.
For the foregoing reasons, we affirm.