No. 31395-2-IIThe Court of Appeals of Washington, Division Two.
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 03-1-00881-1. Judgment or order under review. Date filed: 01/12/2004. Judge signing: Hon. Richard D. Hicks.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
MORGAN, J.
Faith Erin Kalama appeals her conviction of unlawful possession of a controlled substance (heroin), arguing that the trial court erred in denying her motion to suppress and her right to allocution before imposing sentence. Finding error on the allocution issue, we remand for resentencing before a different judge.
On May 6, 2003, Officers McLamore and McClanahan responded to a call regarding a verbal dispute. When they arrived, Kalama was standing outside the residence with a purse over her shoulder. After Kalama told McLamore that the disturbance was only verbal, the officer received information regarding a possible outstanding warrant for Kalama. Kalama attempted to walk away and indicated that she wanted to leave her purse at the scene. McLamore asked her to stay in the immediate area but allowed her to put her purse down on the ground approximately two to three feet away.
After the warrant was confirmed, McLamore arrested Kalama, placed her in handcuffs, and searched her person and her purse. McLamore found a black substance she recognized as heroin inside Kalama’s purse.
The State charged Kalama with unlawful possession of heroin.[1] After denying her motion to suppress, the trial court found her guilty on stipulated facts. The trial court imposed a midpoint standard range sentence without asking Kalama whether she would like to speak on her own behalf. Kalama now appeals.
Kalama argues initially that the trial court erred in denying her motion to suppress because the search of her purse was unlawful under article 1, section 7 of the Washington Constitution.
A warrantless search is per se unreasonable under article 1, section 7 and the Fourth Amendment of the United States Constitution unless it falls within one of the exceptions to the warrant requirement.[2] A search incident to arrest is one such exception.[3] This exception is based on concern for officer safety and the need to prevent destruction of evidence.[4] Any evidence that is lawfully seized incident to arrest may be used to prosecute the arrestee for any crime, including one other than the one for which he or she was initially arrested.[5]
The Washington Supreme Court cited article 1, section 7 in upholding the search of a purse pursuant to this exception in State v. Fladebo.[6] Officers investigating a car accident involving Fladebo cited her for driving under the influence of drugs. After placing Fladebo in a patrol car, they returned to her car, and a passenger identified a purse therein as Fladebo’s. The officers searched the purse in Fladebo’s presence and found drugs.[7] The court held that the officers were entitled to search Fladebo’s purse immediately following her arrest and rejected Fladebo’s contention that a purse deserves the same protection as a locked container.[8]
The Washington Supreme Court applied the Fourth Amendment in upholding the search of a fanny pack under the search incident to arrest exception in State v. Smith.[9] In Smith, the juvenile arrestee was wearing a fanny pack just before his arrest, but it got knocked off during a struggle with the arresting officer. Even though the fanny pack remained in the exclusive control of the officer after it was retrieved, thereby eliminating the possibility that the arrestee could gain access to a weapon or destroy evidence, the court determined that the subsequent search of the fanny pack incident to arrest was proper.[10] Division One observed that Smith clarified the scope of a search incident to arrest of containers such as purses, brief cases, and back packs.[11] The search of such containers incident to arrest is lawful if the object searched was within the arrestee’s control when she was arrested and if the events occurring after the arrest but before the search did not render the search unreasonable.[12] An object is within the arrestee’s control if it was within her reach immediately prior to, or at the moment of, the arrest.[13]
Under this rule, the search of Kalama’s purse was lawful because the purse was within her control immediately prior to her arrest and the search occurred contemporaneously with that arrest. As the trial court observed in denying her motion to suppress, `[s]imply saying I want to leave this and trying to set something down is not a sufficient basis for concluding that the object is no longer within the person’s dominion and control.’[14]
Kalama attempts to argue that a different result is required by State v. White,[15] but this argument is not persuasive. In White, Division Three applied the Fourth Amendment in upholding the search of a cosmetics case found in an arrestee’s coat pocket. The court observed that there is a diminished expectation of privacy in personal possessions closely associated with an arrestee’s clothing but a greater expectation of privacy in items such as purses or luggage.[16] `In situations where this greater expectation of privacy exists, there must be additional reasons present to warrant the search.’[17]
We first observe that any statements in White about the privacy interests in objects other than those found on an arrestee’s person are dicta since the search at issue was a body search. We further note that any confusion on the scope of a search incident to arrest, insofar as it involves items such as purses, has since been clarified by the state supreme court in Smith. The trial court did not err in denying Kalama’s motion to suppress the heroin found in her purse.
Kalama next argues that she was denied her right of allocution during sentencing. Allocution is a statutory right that requires the court to `allow arguments from the . . . offender’ prior to imposing sentence.[18] When allocution is denied, the remedy is to send the defendant before a different judge for a new sentencing hearing.[19] The trial court did not invite Kalama to speak before imposing sentence, and the State concedes that her right to allocution was denied.
The conviction is affirmed but the case remanded for resentencing before a different judge.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.
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