State v. Swetz - Search of Vehicle Incident to Arrest

Division Two of the Court of Appeals recently decided State v. Swetz, which involved a search of a car incident to the driver's arrest. 

Swetz flagged down an officer and told the officer he had seen a bear roaming the streets. Later, the officer pulled up next to Swetz and the Swetz approached the officer. While they talked, the Officer smelled marijuana, walked to Swetz's car, and saw a bag of Marijuana in the car. He searched the car, found more marijuana and valium. Swetz was charged and convicted of possession of marijuana and possession of a controlled substance, valium.

For the first time on appeal, Swetz challenged the search of his car.  Division Two finds the error could be raised for the first time on appeal because it was a manifest error affecting a constitutional right.

The majority holds that the search was invalid under State v. Patton and State v. Valdez, both Washington Supreme court cases addressing the searches of vehicles incident to arrest in the aftermath of Arizona v. Gant, which significantly changed Fourth Amendment law on searches of vehicles incident to arrest.

The majority reads Patton and Valdez as establishing that article 1, section 7 provide greater protection than the Fourth Amendment when it comes to preventing warrentless searches of vehicles after arrest.  The majority stated that under Gant, an officer may search a vehicle incident to arrest if there is reason to believe there is evidence related to the crime for which the person was arrested. But, the court concludes the Washington Supreme Court has not extended this exception under article 1, section 7. Thus because the Officer testified that Swetz was handcuffed and secured in his police car before he searched the vehicle, the search was unlawful. The State conceded this point.

The majority addresses the exigent circumstances and determines it would not make the search lawful.

Judge Hunt dissents. He would have found that the alleged non-preserved constitutional error was not manifest and thus cannot be addressed for the first time on appeal. Alternatively, he would remand for an evidentiary hearing to allow the record to be developed and the allow the State an opportunity to argue additional exceptions to warrant requirement. He would distinguish Patton and Valdez on their facts. He also believes the exigent circumstances exception justified the search.

Interesting case overall.