STATE v. SCALARA (2010)

PUBLISHED OPINION

¶ 1 Michael John Scalara appeals his convictions for identity theft, possession of stolen property, and forgery. He argues that (1) his traffic stop was unlawful; (2) in searching his vehicle, the deputies exceeded the lawful scope of a search incident to arrest for third degree driving while license suspended (DWLS); and (3) his two stolen property convictions violated constitutional prohibitions against double jeopardy. He raises two other arguments in his statement of additional grounds (SAG).¹ Holding that Gant² compels suppression of the evidence seized from Scalara's vehicle, we reverse his convictions and remand to the trial court.

FACTS

I. Search Incident to Arrest

¶ 2 On May 17, 2007, Pierce County Sheriff's Deputies Douglas H. Maier and Jason Jeffrey Bray noticed Michael Scalara's blue compact car with an “older style” front license plate, I Verbatim Transcript of Proceeding 3.5 Hearing (VTP 3.5) (Mar. 17, 2008) at 18; ran the license number through the Department of Licensing (DOL), discovered it had expired in 1999, pulled behind the car, observed a rear “dealer plate” that did not match the “older style” front license plate, I VTP 3.5 (Mar. 17, 2008) at 18, 22, and stopped the car. When asked about the mismatched dealer's license plates, Scalara replied that he was a car dealer authorized to use dealer plates.

¶ 3 Scalara also displayed a laminated “dealer's card,” which Maier examined and believed to be false. I VTP 3.5 (Mar. 17, 2008) at 26. Maier asked for Scalara's driver's license and saw that it had been punched, “indicating [ ] that at some point in time [Scalara] had been suspended or [penalized for a] DUI or something.” I VTP 3.5 (Mar. 17, 2008) at 26. Checking Scalara's driver's status, Maier learned that “[Scalara's] license was suspended in the third degree.” I VTP 3.5 (Mar. 17, 2008) at 27. When Maier asked if he owned the car, Scalara replied that it was a company vehicle, owned by his employer, Century RV.

¶ 4 Bray read Scalara his Miranda³ rights, which Scalara waived. Scalara told the deputies “that he had gotten his license back” and paid all fines related to his suspended license. The deputies arrested him for DWLS, handcuffed him, asked if everything in the car belonged to him,⁴ and put him in the back of their locked patrol car.

¶ 5 For approximately 30 minutes, Maier searched the car incident to Scalara's arrest. Maier found stereo equipment, clothing, personal effects, and a black zippered CD bag⁵ under the folded-down back seat. The unlocked CD bag contained other people's documents, including vehicle titles, registrations and stolen and forged checks. See II VTP 3.5 (Mar. 18, 2008) at 142-144. Returning to the patrol car, Maier advised Scalara that he was also under arrest for possession of stolen property, forgery, and fraud. Scalara claimed that he had found the bag of documents in a closet at his girlfriend's house and did not intend to keep them.

¶ 6 The deputies examined the car's rear “dealer plate” and observed that it was a laminated photocopy or “paper replica,” not a genuine dealer plate. I VTP 3.5 (Mar. 17, 2008) at 35; III Verbatim Transcript of Proceedings (VTP) (Mar. 20, 2008) at 165. Scalara was transported to jail. Law enforcement impounded the car without inventorying its contents, some of which Maier had removed and noted in his report.

II. Procedure

¶ 7 The State charged Scalara with second degree identity theft (Counts I, V), second degree possessing stolen property (Counts II, III), forgery (Counts IV, VI, VII, VIII), and third degree DWLS (Count IX).

¶ 8 Scalara moved “to suppress evidence that was unlawfully obtained” from his person and his car. Clerk's Papers (CP) at 8. On March 18, 2008, the trial court conducted a pretrial CrR 3.6 evidentiary hearing. Scalara contended that (1) “the initial seizure (traffic stop)” and “the scope of [his subsequent] detention” [ ] “were unlawful,” CP at 11-12; (2) in the alternative, even if his traffic stop and detention were lawful, “it cannot fairly be said that the officers' investigation into the property found within the car was part of a valid search incident to arrest,” CP at 24, because he was handcuffed and locked in the backseat of the patrol car before and during the search, and the deputies “could not have been searching for evidence of [DWLS],” CP at 23, or “evidence of mis-use of a dealer plate” because “they had no reason to believe that anything was wrong with [it] until after [they had completed the search],” CP at 23; and (3) the extensive search of Scalara's car was “way beyond what should be allowed for a valid search incident to arrest,” II VTP 3.5 (Mar. 18, 2008) at 207, for DWLS in the third degree.

¶ 9 The State countered that (1) both the traffic stop and subsequent warrantless search of the car were lawful; (2) the vehicle search “was legally justifiable” incident to and “immediately after” Scalara's arrest, CP at 67; (3) Maier “easily found” the black bag containing the evidence (documents) without opening any locked areas or containers, CP at 67; (4) Washington law allows police officers to conduct a search incident to arrest; and (5) “[Scalara] had several items in his vehicle is the reason that the search was so extensive, not because the officers were going outside of their legal boundary to search the vehicle.” II VTP 3.5 (Mar. 18, 2008) at 215.

¶ 10 The trial court ruled that (1) “the stop [and] the subsequent arrest for DWLS third degree were, in fact, lawful and not the result of a pretext or any [other] violation of our case law,” II VTP (Mar. 18, 2008) at 222; (2) “the scope of the search [was] reasonable as defined by our case law and constitutional limits”; (3) thus, “there was no violation of our search and seizure laws,” II VTP 3.5 (Mar. 18, 2008) at 222; and (4) “[e]vidence recovered pursuant to the search is admissible at trial .” CP at 130.

¶ 11 The jury found Scalara guilty on all nine counts. Scalara appeals all of his convictions except for DWLS in the third degree (Count IX).⁶

ANALYSIS

¶ 12 Assuming, without deciding, that the traffic stop was lawful, we focus on whether Arizona v. Gant (decided after the trial in this case concluded) compels suppression of the evidence seized from the warrantless search of Scalara's car incident to his arrest, while he was handcuffed in the back of the locked patrol car. 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). We hold that it does.⁷

¶ 13 Citing Gant, Scalara argues that we must suppress the evidence seized during the search of his car in because the deputies exceeded the scope of a permissible search incident to arrest under the Washington State and federal constitutions. The United States Supreme Court recently held that law enforcement officers may search a vehicle incident to arrest only if it is reasonable to believe that the arrestee could access the vehicle at the time of the search or that the vehicle contains evidence relevant to the arrest offense. Gant, 129 S.Ct. at 1719; see also State v. Valdez, 167 Wash.2d 761, 224 P.3d 751, (2009). (Because “arrestee no longer had access to any portion of his vehicle,” the officers' search of the vehicle was unconstitutional under Gant. Valdez, 167 Wash.2d at 766-67, 224 P.3d 751⁸ ; see Gant, 129 S.Ct. at 1719). Absent these justifications, “a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Gant, 129 S.Ct. at 1723-24.

¶ 14 Here, as in Valdez, it is undisputed that (1) the deputies had no search warrant; (2) Maier conducted an “extensive” and “exhaustive” 30-minute search of the items in the back of Scalara's car, relying solely on the search incident to arrest exception to the warrant requirement as the legal basis for conducting the warrantless search; (3) Scalara remained handcuffed and locked in the patrol car's backseat while Maier searched his car and, thus, he (Scalara) could not access the car to remove any weapons or to destroy any evidence; and (4) because the deputies arrested Scalara for DWLS in the third degree, a licensing violation, it was unreasonable for them to believe that evidence relevant to this crime might be found in his car.⁹ See Valdez, 167 Wash.2d at 766-67, 224 P.3d 751; see Gant, 129 S.Ct. at 1719.

¶ 15 Because Scalara challenged the legality and scope of the vehicle search incident to his arrest below, the record before us is adequate to review these issues, and, unlike in other recent Gant-related appeals, we need not remand for a further evidentiary hearing. Therefore, Gant compels our suppression of the evidence collected during the vehicle search and reversal of the Scalara's resulting convictions.¹⁰

¶ 16 We reverse Scalara's convictions for identity theft in the second degree (Counts I, V), possessing stolen property in the second degree (Counts II, III), and forgery (Counts IV, VI, VII, VIII) and remand to the trial court.

HUNT, J.

We concur: BRIDGEWATER, P.J., and QUINN-BRINTNALL, J.