No. 28187-2-II.The Court of Appeals of Washington, Division Two.
Filed: November 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 011005488, Hon. Don L. McCulloch, December 4, 2001, Judgment or order under review.
Counsel for Appellant(s), John A. Hays, Attorney At Law, 1402 Broadway, Suite 103, Longview, WA 98632.
Counsel for Respondent(s), Heiko P. Coppola, Deputy Pros Atty, Cowlitz Co Pros Aty Offc, 312 S.W. First Ave, Kelso, WA 98626.
DAVID H. ARMSTRONG, J.
Todd Jason Sewald appeals the denial of his suppression motion. He argues that the search of his vehicle following his arrest for driving on a suspended license was not a valid search incident to custodial arrest because the county jail was not booking people on such offenses due to jail overcrowding. Finding that Sewald’s arrest was a custodial arrest, we affirm.
Facts
On June 7, 2001, Longview Police Sergeant Steve Rehaume stopped Sewald for a speeding violation. Following the stop, Rehaume determined that Sewald’s driver’s license had been suspended and that there was a no-bail misdemeanor warrant in his name related to a charge of driving while intoxicated.
Rehaume arrested Sewald for third degree driving on a suspended license and placed him in his patrol car. Rehaume then searched Sewald’s vehicle. Inside the unlocked glove compartment, Rehaume discovered a glasses case containing five unused syringes, a gun case containing a set of scales, and three small baggies containing what was later found to be methamphetamine residue. After Rehaume advised Sewald of his Miranda[1]
rights, Sewald admitted that all of the items except for the scales belonged to him.
The State charged Sewald with a violation of the uniform controlled substances act, use of drug paraphernalia, and third degree driving while license suspended or revoked. Arguing that the search was not a valid search incident to arrest because he was not under custodial arrest, Sewald moved to suppress the evidence discovered during the search.[2]
The testimony at the suppression hearing revealed that on the day of the arrest the Cowlitz County Jail had surpassed its maximum capacity and, barring special circumstances including supervisory override, was not booking detainees arrested for nonviolent misdemeanors. If an officer presented a detainee to the jail on a nonviolent misdemeanor charge, the shift sergeant determined whether the jail would book the person. Generally, the jail would not book the detainee unless the person posed some type of threat to the community. The jail notified local police agencies when it entered this status several months earlier, but it did not broadcast its status on the day of Sewald’s arrest.
Rehaume testified that he did not know the jail was on this status until after he arrested Sewald and that he generally decided whether to arrest someone on the basis of probable cause, not on the basis of whether the jail was accepting bookings. He testified that under department policy when an officer discovered someone driving on a suspended license the officer was to arrest the person, perform a vehicle search, impound the vehicle, transport the detainee to either a satellite office or the police station, and then release the detainee. Rehaume also testified that had he not searched Sewald’s glove compartment and discovered the evidence, he would have taken Sewald to the station and then released him from there.
The trial court denied the suppression motion and, following a bench trial on stipulated facts, convicted Sewald on all three charges. Sewald appeals the denial of the suppression motion.
Analysis
Relying on State v. McKenna, 91 Wn. App. 554, 958 P.2d 1017 (1998), Sewald contends that the search incident to arrest exception to the search warrant requirement does not apply here because he was not under custodial arrest at the time of the search due to the jail’s status. We disagree.
Under both the federal and state constitutions, warrantless searches are presumed invalid unless the State can establish that the search falls under one of the carefully drawn and jealously guarded exceptions to the warrant requirement. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73
(1999); State v. Porter, 102 Wn. App. 327, 330, 6 P.3d 1245 (2000). One exception to the warrant requirement is the search incident to arrest exception. State v. Stroud, 106 Wn.2d 144, 147, 720 P.2d 436 (1986). Under this exception, an officer may conduct a warrantless search of an arrestee and the area that was within the arrestee’s immediate control at the time of a valid custodial arrest. Stroud, 106 Wn.2d at 152; McKenna, 91 Wn. App. at 559-61.
In McKenna, we held that once an officer issues a citation in lieu of arrest and releases a detainee, his authority to conduct a search incident to arrest ends. McKenna, 91 Wn. App. at 561-62. We did not hold that the jail’s status in any way affected the officer’s authority to place the defendant under custodial arrest or that a search prior to the defendant’s release was invalid.
As was the case here, in McKenna, the county jail was refusing to book detainees arrested for nonviolent misdemeanors due to overcrowding. McKenna, 91 Wn. App. at 555. But unlike the officer in McKenna, Rehaume did not manifest an intent to release Sewald. Instead, he arrested Sewald and placed him in his patrol car with the intention of transporting him to the police station.
Although the definition of `custodial arrest’ is not precise, the testimony here shows that Sewald was under custodial arrest at the time of the search. See State v. O’Neill, 110 Wn. App. 604, 43 P.3d 522 (2002) (defendant under custodial arrest despite jail’s booking policy where officer told defendant he was under arrest, defendant exited his vehicle, officer handcuffed defendant and placed him in patrol car); McKenna, 91 Wn. App. at 562 (arrest was noncustodial where officer issued citation in lieu of arrest and released defendant). Because Sewald was under custodial arrest, the search of his vehicle was a valid search incident to arrest and the trial court did not err when it denied Sewald’s motion to suppress.
Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, J., HOUGHTON, J.
(1966).
Additionally, Sewald also challenged the search itself. The trial court found the search valid. Sewald does not challenge this ruling on appeal.