WA: Search incident of car that defendant was standing next to was invalid; not a “recent occupant” and warrant was for FTA

Search incident of defendant’s car in his driveway was invalid. He was merely standing next to it and looking inside when the police showed up and he fled inside. He was not even a “recent occupant.” State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009):

¶25 Unfortunately, the scope of the search incident to arrest exception under our article I section 7 has experienced the same sort of progressive distortion that the United States Supreme Court recently recognized resulted in the unwarranted expansion of the search incident to arrest exception under the Fourth Amendment. Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 1718-19, 173 L. Ed. 2d 485 (2009). In Gant, the court observed that many lower courts have followed the broadest possible reading of the search incident to arrest exception as articulated in Belton, with the result that it has come to be regarded as “‘a police entitlement rather than as an exception justified by the twin rationales of Chimel.’” Id. at 1718 (quoting Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (O’Connor, J., concurring in part)). Recognizing that the decision in Belton itself purported to follow Chimel, the Court in Gant issued a necessary course correction to assure that a search incident to the arrest of a recent vehicle occupant under the Fourth Amendment takes place “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 129 S. Ct. at 1719.

¶26 Article I section 7 requires no less. We have long recognized that our constitution’s express regard for an individual’s “private affairs” places strict limits on law enforcement activities in the area of search and seizure. See, e.g., O’Neill, 148 Wn.2d at 585-86. Today we hold that the search of a vehicle incident to the arrest of a recent occupant 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. While we believe this holding is consistent with the core rationale of our cases, we also recognize that we have heretofore upheld searches incident to arrest conducted after the arrestee has been secured and the attendant risk to officers in the field has passed. Today, we expressly disapprove of this expansive application of the narrow search incident to arrest exception.

¶27 Under a proper understanding of the search incident to arrest exception, the circumstances here simply do not involve a search incident to arrest. Patton was not a driver or recent occupant of the vehicle searched. There is no indication in the record that Patton even had keys to the vehicle. No connection existed between Patton, the reason for his arrest warrant, and the vehicle. Rather, Patton’s warrant was for failure to appear in court for a past offense unrelated to the eventual drug charge that arose from the car search. Thus, there was no basis to believe evidence relating to Patton’s arrest would have been found in the car. Nor did Patton’s brief proximity to the car give rise to safety concerns upon his arrest.