State v. Wisdom, 187 Wash.App. 652 (Division 3) w/ Comments

In 2015, the Washington State Court of Appeals Division 3 decided State v. Wisdom, 187 Wash.App. 652.

The defendant in the case was arrested because the truck he was driving in was stolen.  Subsequent to his arrest, a toiletry bag on a seat in the truck was searched by law enforcement.  The search led to the recovery of illegal drugs. Wisdom told the officer there was methamphetamine on the seat of the truck.  But never consented to the police officer’s search of the toiletry bag.  The arresting officer did not apply for a search warrant.  The officer searched the contents of the bag under the guise of a search incident to lawful arrest and an inventory search.  Wisdom was convicted of drug possession and possession with intent to deliver.  But appealed his convictions on the ground the search(s) were unlawful.

On the surface, the facts of the case would appear hopeless to Wisdom, right?  After all, he was caught driving in a stolen truck. Post-arrest he told the officer methamphetamine would be found on a seat in the truck.  And low and behold, a zipped toiletry bag was located by the police officer inside the truck on a seat, of all places.  With wads of cash inside the bag visible from the outside.

Still think the facts of the Wisdom case are hopeless?  If so, you would be wrong in thinking that.

“Search Incident to Arrest”:

Under both the Fourth Amendment to the US Constitution and Article 1, Section 7 of the Washington State Constitution, a warrantless search of a vehicle incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence of the crime of arrest to conceal or destroy,  State v. Wisdom, citing Arizona v. Gant, 556 U.S. 332, 338 (2009).  In short, Wisdom was arrested, handcuffed, escorted to the officer’s police cruiser and was seated in the back of the cruiser prior to the search of the truck.  Certainly, Wisdom was not in a position to obtain a weapon from the truck and/or reach evidence of the crime of arrest to conceal or destroy.  If the bag was of concern to the officer for purposes of shielding the contents from concealment or destruction, the officer could have sealed the bag and applied for a warrant.  See State v. Snapp, 174 Wash.2d 177 (2012) also cited by State v. Wisdom.

“Inventory Search”

The Wisdom Court cited three decisions by Washington court’s wherein suppression was the remedy for evidence found in a closed container on the ground that the closed container could have been listed as inventory rather than opening the container and listing each individual item inside.  See State v. White, 135 Wash.2d 761 (1998); State v. Houser, 95 Wash.2d 143 (1980) and State v. Dugas, 109 Wash.App. 592 (2001).  Again, if the officer had concerns regarding the contents of the bag, he or should could have applied for a warrant.

Washington’s Constitution Provides: “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  Washington Constitution Article 1, Section 7.  In this particular case, the officer could have applied for a warrant but chose not too.  Wisdom did not give consent as well.  Two very important factors, in the court’s decision to suppress evidence located inside the toiletry bag.

The moral of the story, if you have been charged with a possession crime make sure to explain all the facts of your case to your attorney.  Your case may not be as hopeless as it appears.  You have legal rights.

Happy Thanksgiving!