STATE v. OGDEN, 19518-0-III (Wash.App. 6-28-2001)

No. 19518-0-III.The Court of Appeals of Washington, Division Three. Panel Two.
Filed: June 28, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Asotin County, No. 001000768, Hon. John M. Lyden, August 7, 2000, Judgment or order under review.

Counsel for Appellant(s), Benjamin C. Nichols, Prosecuting Attorney, P.O. Box 220, Asotin, WA 99402.

Counsel for Respondent(s), Charles H. Webb, 924 5th St, P.O. Box 337, Clarkston, WA 99403.

JOHN A. SCHULTHEIS, J.

The State appeals the trial court’s order to suppress evidence seized and statements made by Danita Ogden after her arrest on an outstanding warrant. The court found that the search of Ms. Ogden’s purse, which resulted in the discovery of a small amount of methamphetamine, was illegal, and thus granted her motion to suppress.

Because the search of the purse was a proper search incident to arrest, we reverse the trial court’s decision on the suppression motion and remand for a trial on the merits. facts

On May 27, 2000, Deputy Haglin of the Asotin County Sheriff’s Office received information that there was an active Benton County arrest warrant outstanding for Danita I. Ogden. Deputy Haglin was informed that Ms. Ogden was present at the Highland Market IGA in Clarkston, Washington.

Deputy Haglin contacted a Clarkston police officer to assist him with the arrest warrant because the store was located on the edge of the city limits. Sergeant Jonathon A. Coe of the Clarkston Police Department met Deputy Haglin outside the store. Both officers were in full uniform and were driving marked patrol cars. After confirming the arrest warrant outside the store, the two officers contacted Ms. Ogden inside the building.

Ms. Ogden, who apparently works at the store, had just finished her shift and was standing in the deli area. Upon contacting Ms. Ogden the officers advised her that they had a warrant for her arrest and that she needed to accompany them out of the store. Although disputed by Ms. Ogden, Sergeant Coe later testified that when he initially contacted her, Ms. Ogden had her coat and purse in her hands.

Before leaving the store with the officers Ms. Ogden asked Sergeant Coe if she could check out from work, which he allowed her to do. As she was being escorted out of the store she asked the officer if she could drive her car home. When told no, she then asked whether she could give her keys to a co-worker (Geneva Jacobsen) so the car would not be left in the parking lot all night. The officer agreed to let her give the keys to the co-worker.

Ms. Ogden not only gave her keys to Ms. Jacobsen, she also gave Ms. Jacobsen her purse and asked Ms. Jacobsen to take them home. Although disputed by Ms. Ogden and Ms. Jacobsen, Sergeant Coe testified that he immediately retrieved Ms. Ogden’s purse from the co-worker and escorted Ms. Ogden outside where she was Mirandized and placed under arrest on the outstanding warrant. A search of Ms. Ogden’s purse revealed the presence of a suspicious substance, which later tested positive for a controlled substance.

Ms. Ogden and Ms. Jacobsen both submitted signed statements in which they claimed that Sergeant Coe saw Ms. Ogden give her purse to Ms. Jacobsen but did not immediately say or do anything about it. They said he merely escorted Ms. Ogden outside the store. Ms. Jacobsen’s declaration said that about two to four minutes later an officer came back into the store and grabbed the purse from her and spoke to her rudely. She said that a store customer also noted and commented on the officer’s rudeness.

Ms. Ogden was arrested on the original warrant and subsequently charged with possession of a controlled substance (methamphetamine) in violation of RCW 69.50.401(d). She filed a motion to suppress and the matter was fully briefed for the court. After a hearing on the suppression issues, the court allowed defense counsel additional time to prepare a response to the State’s brief on the suppression issues. For reasons that are not clear in the record, the court announced its decision about a week later without allowing another hearing on the issue. Ms. Ogden’s motion to suppress was granted and findings, conclusions, and an order to that effect were entered.

In its undisputed findings of fact the court determined that Ms. Ogden was holding her purse in her hands and that it was in her possession at the time the officers contacted her and informed her about the arrest warrant.[1] The court also found that Ms. Ogden gave the co-worker the keys and the purse prior to walking outside with the officers.[2] It then found that `[o]ne of the officers retrieved the purse from the co-worker and searched it incident to Ms. Ogden’s arrest.’[3]
Additionally, the court found that during the search of Ms. Ogden’s purse, a packet of suspected methamphetamine was discovered.[4] Ms. Ogden admitted that the substance was methamphetamine and that it was for personal use. The substance field tested positive for a controlled substance. In its conclusions, the court found that Ms. Ogden was lawfully arrested pursuant to a valid arrest warrant.[5] It also concluded that Sergeant Coe’s search of the purse was without a warrant.[6]
The court determined that the search of the purse could not be justified because after her arrest, Ms. Ogden handed the purse to a co-worker.[7] The State filed this timely appeal of the court’s decision.

analysis
We are asked to determine whether the trial court erred when it granted Ms. Ogden’s suppression motion on the basis of an illegal search.

The State asserts that the court should have held a full evidentiary hearing, which included testimony from Ms. Ogden, Ms. Jacobsen, and the officers present during Ms. Ogden’s arrest. It also asserts that the court’s conclusion that the purse was illegally searched is an error of law that is not supported by the evidence.

We first note that a full evidentiary hearing is not always required under CrR 3.6. The rule states that `[t]he court shall determine whether an evidentiary hearing is required based upon the moving papers.’ CrR 3.6(a). Here, a close reading of the opening paragraph of the court’s final order granting the motion to dismiss reveals that the court denied the parties’ request for a hearing. Even so, it set forth its findings and conclusions. The State contends that this was a procedural error. It maintains that the court, in denying the evidentiary hearing, was not required to set forth findings and conclusions but was required to set forth its reasons for denying the hearing pursuant to CrR 3.6(b).

Under these facts we find that a sufficient evidentiary hearing on the suppression issues was conducted. In making its decision the court relied on the declarations of Ms. Ogden and Ms. Jacobsen, and allowed direct and cross-examination testimony from Sergeant Coe. The court said it also relied on the police reports and memoranda submitted by the parties. Although it allowed defense counsel the opportunity to submit a reply brief to the State’s memorandum regarding the suppression issues, the record does not contain any information that additional briefing was submitted and/or considered. Contrary to the State’s assertion, the trial court appropriately entered findings and conclusions at the end of the suppression hearing.

Because the trial court weighed the evidence, our review is limited to determining whether its findings are supported by substantial evidence and, if so, whether the findings support the court’s conclusions of law and judgment. Wilhelm v. Beyersdorf, 100 Wn. App. 836, 847, 999 P.2d 54
(2000). This court does not retry factual issues or substitute its judgment for that of the trial court. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959).

Here, even without the live testimony of more than one witness, the court had enough information to make a decision regarding the suppression issues. After doing so, it then entered its findings regarding both the disputed and undisputed facts as well as the conclusions and the order.

The pertinent findings state:

8. While handing her keys to the co-worker, she also gave her purse to the co-worker and the officers then walked Ms. Ogden out to the parking lot.
9. One of the officers retrieved the purse from the co-worker and searched it incident to Ms. Ogden’s arrest.[8]

The disputed facts state in relevant part:

A. The State alleges and the Defendant disputes the following.
1. When Ms. Ogden handed her keys to the co-worker, the officer did not see that she had also handed the purse to the co-worker.
2. When the Defendant turned to accompany the officers out of the store one of the officers noted that she no longer had the purse.
3. The officer immediately went to the co-worker and seized the purse.
. . . .
B. The Defendant alleges and the State disputes the following.
1. The Defendant did not believe that she was `under arrest’ until she had been escorted out of the store into the parking lot.
2. The Defendant handed her keys and purse to the co-worker with the tacit approval of the officers.
3. The co-worker tucked the Defendant’s purse under her arm and continued to wait on customers and operate a cash register for two to four minutes before one of the officers returned and seized the purse.[9]

The pertinent conclusions of law state:

3. The search of the purse was a warrantless search.
4. The search cannot be justified as a search incident to arrest of the Defendant because after she was placed under arrest, but before the purse was seized, the Defendant handed the purse to a co-worker.[10]

Here, the findings are supported by substantial evidence. The conclusions logically follow the court findings. Accordingly, there is no need to remand the case for another evidentiary hearing. However, the court’s conclusion that the search of the purse was not justified is an error of law.

A search incident to arrest is a recognized exception to the warrant requirement under both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996). This exception is based both upon concern for officer safety and the need to prevent destruction of evidence. Id. The scope of a search incident to arrest is limited to the area within the arrestee’s immediate control. State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992). Any evidence that is seized incident to arrest may be used to prosecute the arrestee for a crime other than the one for which he was initially arrested. State v. Jordan, 92 Wn. App. 25, 30, 960 P.2d 949 (1998).

Applying the facts of this case to the law set forth above, we are convinced that the trial court erred when it concluded that the search was not justified as a search incident to the arrest of Ms. Ogden. Reading conclusion of law No. 4 in tandem with the undisputed findings the following chronology becomes clear: (1) Ms. Ogden was arrested inside the store; (2) prior to leaving the store with the officers Ms. Ogden handed her purse to Ms. Jacobsen; (3) an officer retrieved it (the court did not specify when the officer seized the purse); and (4) the purse was searched and incriminating evidence was found. Although not necessary to our analysis, the court made no finding regarding whether the search was conducted for officer safety purposes and/or to prevent destruction of evidence. Nor did it specify whether the location of the purse at the time of Ms. Ogden’s arrest or the lapse of time prior to the purse being retrieved from the co-worker was determinative of its decision regarding the illegality of the search.

From the facts and conclusions presented, the court’s determination that the purse was illegally searched is contrary to the law. Ms. Ogden was arrested pursuant to a valid arrest warrant. A warrantless search of an individual may be proper if it is conducted incident to a lawful arrest. State v. Hendrickson, 129 Wn.2d 61, 71, 917 P.2d 563 (1996). The scope of a search incident to arrest is limited to `the area within the arrestee’s immediate control, i.e., places from which the individual might obtain a weapon or destroy incriminating evidence.’ State v. Mitzlaff, 80 Wn. App. 184, 186, 907 P.2d 328 (1995) (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). In Smith, 119 Wn.2d at 681, our Supreme Court found that the `arrestee does not have to be in actual physical possession of an object for that object to be within his control for search incident to arrest purposes.’ The Smith court found that an object is within the control of an arrestee in relation to a search incident to an arrest `as long as the object was within the arrestee’s reach immediately prior to, or at the moment of, the arrest.’ Id. at 681-82.

In Smith, the juvenile arrestee was wearing a fanny pack just prior to 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, thus there was no danger that the arrestee could gain access to a weapon or destroy evidence, the Supreme Court determined that the subsequent search of the fanny pack incident to arrest was proper. Smith, 119 Wn.2d at 684.

Applying the rule from Smith to the facts of this case the search of Ms. Ogden’s purse must be found permissible. There is no dispute that Ms. Ogden was holding her purse when the officers contacted her regarding the arrest warrant. Although she was not holding her purse when she walked outside the store and was placed in the patrol car, there is no question that she knew she was under arrest and not free to leave the presence of the officers from the moment of contact inside the store.[11]
This is evidenced by her asking permission to check out from work and the officers’ denial of her request to drive her vehicle home from the store. Because the court determined that Ms. Ogden was holding her purse immediately prior to or at the time of her arrest,[12] the subsequent seizure and search of her purse were proper.

Finally, Ms. Ogden argues that the alleged lapse of time between her arrest and the search of her purse renders the search unreasonable. This issue was also discussed in the Smith decision where the court determined a delay of 9 to 17 minutes was not per se unreasonable, especially when the delay was caused by the officer’s attempt to secure the premises and protect herself and the public. Smith, 119 Wn.2d at 683. The reasonableness of the delay must be considered on a case by case basis. Id. at 683 n. 4; see also State v. Boursaw, 94 Wn. App. 629, 632-33, 976 P.2d 130 (1999). Under these facts, at most there was only a five-minute delay between her arrest and the search of Ms. Ogden’s purse. During this time, Ms. Ogden was read her rights, handcuffed, and placed in the back of a patrol car. A few minutes delay is reasonable under the circumstances.

The motion to suppress evidence was granted in error. Accordingly, we reverse the order of dismissal and remand for a trial on the merits.

A majority of the panel has determined that 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.

WE CONCUR: BROWN, A.C.J., KATO, J.