From the Fourth Amendment (against unreasonable search and seizure) is whatever we say it is dept.. Olympia police use littering misdemeanor of car passenger as cause to search vehicle without warrant.
From Fourth Amendment blog:
Around 2:00 a.m. in downtown Olympia, Kirwin was driving a truck with
Irwin riding in the passenger seat. From his patrol vehicle, Officer Kory Pearce
observed the passenger, Irwin, discard a beer can out of the passenger side window
and saw its liquid contents spill onto the sidewalk. Officer Pearce activated his
emergency lights and saw the passenger lean down as if to conceal something.
Once stopped, Irwin told Officer Pearce he threw the can out of the vehicle to
avoid being caught with an open container inside of the truck. Officer Pearce
arrested Irwin for littering, which is a misdemeanor under the Olympia Municipal
Code (OMC) 9.40.110. After Officer Pearce secured Irwin in the patrol vehicle, he
returned to the passenger side of the truck to search the area that was within Irwin's
immediate control prior to his arrest. With Kirwin's consent, Officer Pearce
searched the locked center console of the truck where he discovered cash and a bag
of a crystalline substance he suspected to contain methamphetamine. Officer Pearce
placed the driver, Kirwin, under arrest for unlawful possession of a controlled
substance. Officer Pearce apprised Kirwin of his Miranda1 rights, which Kirwin
From Dissent:
The arrest of a passenger in a car
does not automatically authorize the police to search a car being driven by, and
belonging to, another individual. And, even if the arrest of the passenger could
justify the search of the car, the arrest of the passenger here was invalid and
could not be used to justify any search. The arrest was invalid because the
police officer arrested the passenger under a local ordinance that imposed a
significantly greater penalty than a state statute prohibiting the same conduct.
Such a conflict in punishment is unconstitutional, as held under a line of cases
this court has not overruled but inexplicably does not follow today. Therefore, I
would hold the search was unconstitutional, suppress the evidence, and remand
the case to the trial court.
A warrantless search is presumed unconstitutional. State v. Johnson, 128
Wn.2d 431, 446-47, 909 P.2d 293 (1996). "Exceptions to this requirement are
narrowly drawn. The State bears a heavy burden in showing that the search
falls within one of the exceptions." State v. Jones, 146 Wn.2d 328, 335, 45
P.3d 1062 (2002) (citations omitted).
The State relies upon the search incident to arrest exception. "[A] search
incident to arrest is a well-recognized exception to the warrant requirement."
Id. For the exception to apply, the search must be limited in scope to the
purposes underlying the rule: maintaining officer safety and preventing
destruction of evidence. Id. This court has also observed that because of the
heightened privacy protection under article I, section 7 of the Washington State
Constitution, "'we do not believe that these exigencies always allow a search.'"
Id. (quoting State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (holding
that incident to the arrest of the driver, an officer may search the passenger
compartment under the driver's immediate control)). The search must also be
incident to a valid arrest. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469
(2007). But none of these criteria was met here.
First, the search was not properly limited to the purposes underlying the
Stroud rule--preserving officer safety and preventing destruction of evidence.
It is important to note Dennis Kirwin was driving the car, whereas it was his
passenger, Casey Irwin, upon whose arrest for littering the State attempts to
justify the search of the car. The Court of Appeals has improperly extended
Stroud to justify a warrantless search of an automobile following the arrest of a
passenger who does not own the car.
From Fourth Amendment blog:
Around 2:00 a.m. in downtown Olympia, Kirwin was driving a truck with
Irwin riding in the passenger seat. From his patrol vehicle, Officer Kory Pearce
observed the passenger, Irwin, discard a beer can out of the passenger side window
and saw its liquid contents spill onto the sidewalk. Officer Pearce activated his
emergency lights and saw the passenger lean down as if to conceal something.
Once stopped, Irwin told Officer Pearce he threw the can out of the vehicle to
avoid being caught with an open container inside of the truck. Officer Pearce
arrested Irwin for littering, which is a misdemeanor under the Olympia Municipal
Code (OMC) 9.40.110. After Officer Pearce secured Irwin in the patrol vehicle, he
returned to the passenger side of the truck to search the area that was within Irwin's
immediate control prior to his arrest. With Kirwin's consent, Officer Pearce
searched the locked center console of the truck where he discovered cash and a bag
of a crystalline substance he suspected to contain methamphetamine. Officer Pearce
placed the driver, Kirwin, under arrest for unlawful possession of a controlled
substance. Officer Pearce apprised Kirwin of his Miranda1 rights, which Kirwin
From Dissent:
The arrest of a passenger in a car
does not automatically authorize the police to search a car being driven by, and
belonging to, another individual. And, even if the arrest of the passenger could
justify the search of the car, the arrest of the passenger here was invalid and
could not be used to justify any search. The arrest was invalid because the
police officer arrested the passenger under a local ordinance that imposed a
significantly greater penalty than a state statute prohibiting the same conduct.
Such a conflict in punishment is unconstitutional, as held under a line of cases
this court has not overruled but inexplicably does not follow today. Therefore, I
would hold the search was unconstitutional, suppress the evidence, and remand
the case to the trial court.
A warrantless search is presumed unconstitutional. State v. Johnson, 128
Wn.2d 431, 446-47, 909 P.2d 293 (1996). "Exceptions to this requirement are
narrowly drawn. The State bears a heavy burden in showing that the search
falls within one of the exceptions." State v. Jones, 146 Wn.2d 328, 335, 45
P.3d 1062 (2002) (citations omitted).
The State relies upon the search incident to arrest exception. "[A] search
incident to arrest is a well-recognized exception to the warrant requirement."
Id. For the exception to apply, the search must be limited in scope to the
purposes underlying the rule: maintaining officer safety and preventing
destruction of evidence. Id. This court has also observed that because of the
heightened privacy protection under article I, section 7 of the Washington State
Constitution, "'we do not believe that these exigencies always allow a search.'"
Id. (quoting State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (holding
that incident to the arrest of the driver, an officer may search the passenger
compartment under the driver's immediate control)). The search must also be
incident to a valid arrest. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469
(2007). But none of these criteria was met here.
First, the search was not properly limited to the purposes underlying the
Stroud rule--preserving officer safety and preventing destruction of evidence.
It is important to note Dennis Kirwin was driving the car, whereas it was his
passenger, Casey Irwin, upon whose arrest for littering the State attempts to
justify the search of the car. The Court of Appeals has improperly extended
Stroud to justify a warrantless search of an automobile following the arrest of a
passenger who does not own the car.
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