WA: SI of passenger compartment after warrant came back on driver was unreasonable

Search incident after a warrant came back during a traffic stop was unreasonable under the search incident doctrine. Loose panels were seen, and the officer called for a drug dog. [The court analyzed the search incident doctrine at common law and showed how it became twisted through Belton.] State v. Valdez, 167 Wn. 2d 761, 224 P.3d 751 (2009):

A search was permitted incident to arrest under common law based upon concerns for officer safety and to secure evidence of the crime of arrest so as to preserve it for trial. Ringer, 100 Wn.2d at 691-93 (citing Leigh v. Cole, 6 Cox Crim. L. Cas. 329, 332 (Oxford Cir. 1853) and Dillon v. O’Brien, 20 L.R. Ir. 300, 316-17 (Ex. D. 1887)). These justifications permitting a warrantless search incident to arrest are not simply products of judicial fancy, but of principled necessity. Cf. State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986) (where this court warned against the practice of announcing a decision based upon state constitutional law without establishing the principled basis upon which that decision is founded). The necessity inherent in these justifications is two-fold. First, necessity justifies why the search need be conducted at all. It is necessary to permit a search for weapons or destroyable evidence where a risk is posed because, should a weapon be secured or evidence of the crime destroyed, the arrest itself may likely be rendered meaningless–either because the arrestee will escape physical custody or because the evidence implicating the arrestee will be destroyed. Ringer, 100 Wn.2d 692-93 (citing Leigh, 6 Cox Crim. L. Cas. at 332 and Dillon, 20 L.R. Ir. at 316-17). Second, necessity justifies the search incident to arrest being done without a search warrant. Quite simply, time is of the essence. In some circumstances, a delay to obtain a search warrant might be shown to provide the opportunity for the arrestee to procure a weapon or destroy evidence of the crime.

However, the search incident to arrest exception has been stretched beyond these underlying justifications, permitting searches beyond what was necessary for officer safety and preservation of the evidence of the crime of arrest. This trend in article I, section 7 jurisprudence was substantially adopted from a similar trend in Fourth Amendment jurisprudence. See Stroud, 106 Wn.2d at 160-64 (Durham, J., concurring in the result); Ringer, 100 Wn.2d at 690-99. As characterized by Justice Frankfurter in the Fourth Amendment context, the trend of cases “merely prove[s] how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.” United States v. Rabinowitz, 339 U.S. 56, 75, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting).

Questioning defendant and seeking consent without reasonable suspicion to continue the stop made it an unreasonable seizure. State v. Berry, 232 Ore. App. 612, 222 P.3d 758 (2009).

Officers had reasonable belief person wanted in arrest warrant for violation of supervised release was on the premises of the place entered, so the entry was valid. United States v. Pretends Eagle, 2009 U.S. Dist. LEXIS 120206 (D. Neb. December 23, 2009).*