Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 37966-0
Title of Case: State Of Washington, Respondent V. Michael John Scalara, Appellant
File Date: 03/23/2010
SOURCE OF APPEAL
Appeal from Pierce County Superior Court
Docket No: 07-1-02724-8
Judgment or order under review
Date filed: 06/27/2008
Judge signing: Honorable John Russell Hickman
Authored by J. Robin Hunt
Concurring: C. C. Bridgewater
COUNSEL OF RECORD
Counsel for Appellant(s)
Maureen Marie Cyr
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Thomas Charles Roberts
Attorney at Law
Co City Bldg
930 Tacoma Ave S Rm 946
Tacoma, WA, 98402-2102
Stephen D Trinen
Pierce County Prosecutors Ofc
930 Tacoma Ave S Rm 946
Tacoma, WA, 98402-2102
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 37966-0-II
MICHAEL JOHN SCALARA, PUBLISHED OPINION
HUNT, J. -- 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.
1 In his SAG, Scalara argues that the trial court erred in permitting a tainted identification from
one of the State's main witnesses and failing to set forth the statutory maximum sentence for
identity theft in his judgment and sentence.
2 Arizona v. Gant, 556 U.S.__, 129 S. Ct. 1710, 173 L.Ed.2d 485 (2009).
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I. Search Incident to Arrest
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
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.
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
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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and put him in the back of their locked patrol car.
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.
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.
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).
Scalara moved "to suppress evidence that was unlawfully obtained" from his person and
4 Scalara replied that all the items belonged to him, explaining that he was in the process of
moving out of his girlfriend's house.
5 Although the record on appeal characterizes this item as "[a] man's purse," a "zippered purse,"
and a CD case, the parties described it as a "CD bag" at oral argument. Accordingly, we refer to
the item as a "CD bag" throughout this opinion. II VTP 3.5 (Mar. 18, 2008) at 142-43.
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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.
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.
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
No. 37966 0-II
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.
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
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
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
6 At oral argument, Scalara confirmed that he is not appealing this conviction.
7 Neither the parties nor the trial court could have known at the time of the 2007 evidentiary
hearing or trial that two years later the United States Supreme Court would file its decision in
Gant, holding that warrantless searches of vehicles incident to arrest were unconstitutional except
in certain circumscribed circumstances, none of which are present here.
Yet, contrary to the State's assertion, Scalara preserved his right to challenge the vehicle
search on appeal because he moved the trial court to suppress the evidence obtained from his car
under CrR 3.6, and he explicitly argued that the search of his car could not be justified as a valid
warrantless search incident to arrest for DWLS.
No. 37966 0-II
contains evidence relevant to the arrest offense. Gant, 129 S. Ct. at 1719; see also State v.
Valdez, 167 Wn.2d 761, __P.3d__, (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 Wn.2d at 766-678; 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.
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 Wn.2d at
8 Similar to the facts here, after stopping Valdez for a broken headlight, police officers ran a
records check, discovered an outstanding arrest warrant, Valdez, 167 Wn.2d at 766-67, and
arrested, handcuffed, and locked him in a patrol car, at which he "no longer had access to any
portion of his vehicle." Valdez, 167 Wn.2d at 766-67. During a search his vehicle incident to his
arrest, the officers discovered methamphetamine with canine unit assistance, which delayed
conducting the search. Valdez, 167 Wn.2d at 766-67.
9 The State responds that the Fourth Amendment "good faith" exception to the exclusionary rule
applies, and, thus, the evidence obtained during the search of Scalara's vehicle "should not be
suppressed." Corrected Br. of Resp. at 27, 33. Citing State v. White, Scalara counters that in
recognizing Washington Constitution's greater privacy protections, as compared to the federal
constitution, the Washington State Supreme Court has "specifically rejected the 'good faith'
standard set out in Michigan v. DeFillippo, 443 U.S. 31, 99, S. Ct. 2627, 61 L. Ed. 2d 343
(1979)." Reply Br. of App. at 19 (citing State v. White, 97 Wn.2d 92, 103, 640 P.2d 1061
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766-67; see Gant, 129 S. Ct. at 1719.
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
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.
A different panel of our court has recently noted that Washington has declined to apply
the federal good-faith exception to the exclusionary rule. State v. McCormick, 152 Wn. App.
536, 544, 216 P.3d 475 (2009) (citing State v. White, 97 Wn.2d 92, 109-10, 640 P.2d 1061
(1982)). The panel assigned to Scalara's case has not ruled on whether we agree with the
McCormick panel on this point. If we were to disagree with our McCormick colleagues,
however, Scalara's is not the case in which to address the good faith exception to the
exclusionary rule. As we noted in State v. Valdez, not every search of a vehicle incident to arrest
is proper, even under the law before Gant was filed. 137 Wn. App. 280, 286-89, 152 P.3d 1048
(2007), aff'd, 167 Wn. 2d 761, __P.3d__, 2009 WL 4985242 (filed Dec. 24, 2009).
Moreover, Scalara's case was briefed and argued before Division 1 of our court filed its
decision in State v Riley, No. 62418-1-I, 2010 WL 427118 (Wash. Feb. 8, 2010), in which it held
that the good faith exception prevented the exclusion of evidence discovered in a search incident
10 Accordingly, we need not address Scalara's remaining arguments, including those he raises in
his SAG. See Br. of App. at 27; SAG.
No. 37966 0-II