Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 84223-0
Title of Case: State v. Snapp
File Date: 04/05/2012
Oral Argument Date: 05/19/2011


SOURCE OF APPEAL
----------------
Appeal from Pierce County Superior Court
06-1-05153-1
Honorable Stephanie A Arend


JUSTICES
--------
Barbara A. Madsen Majority Author
Charles W. Johnson Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Dissent Author
Debra L. Stephens Signed Majority
Charles K. Wiggins Signed Majority
Steven C. González Did Not Participate
Gerry L. Alexander,
Justice Pro Tem. Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647


Daniel Gerald Snapp (Appearing Pro Se)
Cedar Creek Correction Center
#801683
PO Box 37
Littlerock,, WA, 98556


Richard Alan Hansen
Allen Hansen & Maybrown PS
600 University St Ste 3020
Seattle, WA, 98101-4105


Cooper David Offenbecher
Allen, Hansen & Maybrown P.S.
One Union Square
600 University St Ste 3020
Seattle, WA, 98101-4105

Counsel for Respondent(s)
Stephen Paul Hobbs
Office of the Prosecuting Attorney
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


Stephen D Trinen
Pierce County Prosecutors Ofc
930 Tacoma Ave S Rm 946
Tacoma, WA, 98402-2102


Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362

Amicus Curiae on behalf of Washington Association of Crimin
Sheryl Gordon Mccloud
Law Offices of Sheryl Gordon McCloud
710 Cherry St
Seattle, WA, 98104-1925

Amicus Curiae on behalf of Washington Association of Prosec
Seth Aaron Fine
Attorney at Law
Snohomish Co Pros Ofc
3000 Rockefeller Ave
Everett, WA, 98201-4060


Pamela Beth Loginsky
Washington Assoc of Prosecuting Atty
206 10th Ave Se
Olympia, WA, 98501-1399

Amicus Curiae on behalf of Aclu
Douglas B Klunder
Attorney at Law
6940 Parshall Pl Sw
Seattle, WA, 98136-1969






IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 84223-0
Respondent, ) (consolidated with
) No. 84569-7)
v. )
)
DANIEL GERALD SNAPP, ) En Banc
)
Petitioner. )
_______________________________________)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
ROGER SINCLAIR WRIGHT, )
)
Petitioner. ) Filed April 5, 2012
_______________________________________)

MADSEN, C.J. -- In Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed.

2d 485 (2009), the United States Supreme Court held that a warrantless automobile

search incident to arrest of a recent occupant of the vehicle is proper under the Fourth

Amendment to the United States Constitution only (1) when the arrestee is unsecured and

No. 84223-0 (consol. w/84569-7)

within reaching distance of the passenger compartment at the time of the search or (2)

when it is reasonable to believe evidence relevant to the crime of arrest might be found in

the vehicle. The first of these exceptions to the warrant requirement mirrors the vehicle

search-incident-to-arrest exception under article I, section 7 of the Washington State

Constitution. See State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009); State v. Buelna

Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009).

In the consolidated cases before us, the issue we must decide is whether an
equivalent to Gant's second exception, referred to here as Thornton1 exception, applies

under article I, section 7 of the Washington State Constitution. We conclude that no such

exception is permissible under article I, section 7. Accordingly, we reverse the Court of

Appeals in both cases, reverse the defendants' convictions, and remand these cases for

further proceedings consistent with our decision herein.

FACTS

State v. Snapp

On July 22, 2006, about 8:00 a.m., Trooper Keith Pigott saw a blue Ford Escort

that was occupied by driver Daniel Snapp and passenger Angela Mae Wilcox. The

trooper noticed two air fresheners hanging from the Escort's rearview mirror, which he

believed blocked the driver's view. The trooper pulled his vehicle up next to the Escort

and saw that the driver's seat belt appeared to be patched together with a blue carabiner.

In his opinion, the carabiner was insufficient and the seat belt was defective.

1 Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d (2004).
2

No. 84223-0 (consol. w/84569-7)

Trooper Pigott dropped back behind the Escort, activated his emergency lights,

and pulled the car over. As Mr. Snapp turned into a parking lot, Trooper Pigott saw

Snapp lean forward and dip his right shoulder, as if he was placing something under the

seat. Trooper Pigott called for backup.

When Pigott approached the driver's side of Snapp's car, Pigott told Snapp why he

was stopped. Trooper Pigott asked what Snapp hid as he pulled into the parking lot and

Mr. Snapp answered that he was reaching for a cigarette. The trooper asked for

identification, registration, and proof of insurance. Mr. Snapp identified himself using a

Department of Corrections (DOC) inmate card and said he did not have a driver's license.

Mr. Snapp quickly opened and closed the glovebox to retrieve the registration

form. While the glovebox was open, Trooper Pigott believed he saw a "baggie" of what

he suspected was methamphetamine. Trooper Pigott's observation of Mr. Snapp led him

to believe that Snapp was under the influence of a stimulant.

Trooper Pigott asked Snapp if he had any weapons and Snapp produced a knife

from his pants pocket. Pigott then asked Mr. Snapp to exit the car to perform sobriety

tests, and Snapp agreed to perform the tests. Pigott concluded that while Snapp might be

under the influence to some degree, he was not impaired to the level that would justify an

arrest for driving while under the influence.

Pigott asked Snapp whether there was "meth" in the glovebox. Mr. Snapp said

that there was no "meth" but there was a "meth" pipe in the car. The trooper handcuffed

Snapp and placed him in the back of his patrol car. When she was asked what was in the

3

No. 84223-0 (consol. w/84569-7)

car, Ms. Wilcox said that there was marijuana in her purse and that Snapp had hidden a

meth pipe. Officer Pigott retrieved the meth pipe in the area where he had seen Mr.

Snapp make the movement that Snapp described as reaching for a cigarette.

A records check revealed that Mr. Snapp had an outstanding no-bail arrest warrant

for escape from the DOC and that Snapp's driver's license had been revoked. He was

arrested on the warrant, for driving while his license was revoked and for drug

paraphernalia. Ms. Wilcox, who was arrested for possession of marijuana, was placed in

the patrol car of Trooper Ames, called in as backup.

Trooper Pigott searched the Escort incident to Snapp's arrest. He found an

accordion folder that contained papers and items with peoples' identities and a CD case

that contained identification cards and credit cards, which Trooper Pigott concluded were

evidence of identity theft. Snapp also had credit cards in his wallet that did not belong to

him. Pigott noticed that the backseat of the car was folded down and he could see that

there were a large number of items in the trunk. He stopped the search and had the car

impounded. Later, a search warrant was obtained for the Escort's trunk.

On October 31, 2006, the State charged Mr. Snapp with 21 counts of second

degree identity theft and one count of first degree identity theft. Snapp moved to

suppress the evidence obtained during the warrantless search, arguing that both the stop

and the search were unlawful. The trial court denied the motion. In its findings of fact

resolving disputed facts, the trial court found that the trooper's description of the

carabiner was credible and that Trooper Pigott had probable cause to stop the car and to

4

No. 84223-0 (consol. w/84569-7)

arrest Snapp on the outstanding escape warrant, for driving while his license was

suspended, and for the drug paraphernalia. The court concluded that the search of the

vehicle was a valid search incident to arrest.

The State filed an amended information charging Snapp with six counts of second
degree identity theft and Snapp entered an Alford-Newton plea,2 pleading guilty to all six

counts but with a reservation of his right to appeal the denial of his CrR 3.6 motion to

suppress. He appealed and the Court of Appeals affirmed. The Court of Appeals held

that Trooper Pigott lawfully arrested Snapp for use of drug paraphernalia and then

searched the vehicle for evidence related to this crime of arrest. Therefore, the court

concluded, under Gant's Thornton exception the warrantless search was lawful. State v.

Snapp, 153 Wn. App. 485, 219 P.3d 971 (2009).

Acting pro se, Snapp sought discretionary review by this court, arguing that under

Patton and Buelna Valdez the search violated article I, section 7. We granted the petition

for discretionary review and appointed counsel for Snapp.

State v. Wright

On November 29, 2006, Seattle police officer Chris Gregorio was on routine patrol

driving northbound on Waters Avenue South approaching the intersection with South

Roxbury Street, in a neighborhood the officer described as a "hot spot" known for

"burglaries and car prowls." Verbatim Report of Proceedings (VRP) at 7-8, 32-33. At

2 N. Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87
Wn.2d 363, 552 P.2d 682 (1976).
5

No. 84223-0 (consol. w/84569-7)

4:45 p.m., as he approached Roxbury, he saw a car one block away on a parallel street,

59th Avenue South, driving north and beginning to turn eastbound on Roxbury without

headlights, though it was dark out. Although the vehicle began the turn heading toward

the patrol car, it stopped about midturn, backed onto 59th Avenue South, and then turned

and headed westbound on Roxbury, moving away from the patrol car.

Gregorio immediately pulled in behind the vehicle and stopped it because the
driver was driving without headlights.3 As he was making the stop, he asked that another

officer also respond to the scene.4 Officer Gregorio then approached Roger Wright, the

sole occupant, and noticed a strong odor of marijuana coming from the vehicle.

Officer Gregorio asked Mr. Wright for his driver's license, registration, and proof

of insurance and told him why he had stopped him. At some point in his conversation

with Wright, Gregorio indicated that the area was a hot spot for stolen cars, burglaries,

3 The officer testified that it was "seconds," not a "long period at all," between the time he saw
the vehicle without its headlights on and the time he stopped it. VRP at 10. He testified that he
would usually allow a driver time to turn the headlights on, and if the driver did not, then he
would initiate a stop.
Mr. Wright claims that the officer "identified Mr. Wright as a 'black male' and contacted
him on 'South Roxbury Street.'" Pet. for Discretionary Review, State v. Wright, No. 84569-7, at
3; see also Appellant's Opening Br. at 3 (same quotation, citing VRP at 7-8). The State correctly
pointed out in its brief filed in the Court of Appeals that the reference to a "black male" came
when Officer Gregorio identified the defendant in court (in response to a request to identify the
defendant in the courtroom and an item of clothing he was wearing, the officer stated that "He is
sitting at the table, black male, wearing a green shirt, button up shirt. RP at 7"). Br. of Resp't at
5 n.2. According to Officer Gregorio's testimony, at the time he saw the defendant's vehicle
when he was pulling onto Roxbury, he could not see the defendant inside the car, just the vehicle
being driven without the headlights on.
4 Officer Gregorio testified that, for officer safety, if he was pulling a vehicle over with three or
four occupants he would usually ask for backup, if one was available. He also testified, as noted,
that he could not see inside the vehicle.
6

No. 84223-0 (consol. w/84569-7)

and vehicle prowls. The officer noticed that Wright was extremely nervous and reluctant

to open the glove box and, when he did, Gregorio noticed a large roll of money.

Gregorio arrested Wright and passed him off to Officer Larned, the backup officer

who had arrived on the scene shortly after Gregorio had initiated contact with Wright.
Wright was placed in the back of a patrol car and read his Miranda5 rights, which he

waived. Officer Gregorio questioned Mr. Wright about the odor of marijuana in the car.

Wright was reluctant to answer questions about marijuana but eventually admitted he had

been smoking marijuana earlier. Officer Gregorio testified that all Wright would say was

that he was smoking it. Realizing that the conversation was not going any further,

Gregorio requested a K-9 unit.

When it arrived about 20 minutes later, a dog uncovered two baggies of marijuana,

$1,300 in cash, and a prescription bottle of Oxycodone in Wright's name in the vehicle.

The dog then found two additional baggies of marijuana and a scale in the backseat.

Based upon this search, Gregorio obtained a warrant for the vehicle and discovered a bag

containing MDMA (methylenedioxymethamphetamine or ecstasy) in the trunk.

Wright was charged with possession of MDMA with intent to distribute and

possession of marijuana with intent to distribute. He moved to suppress the evidence.

Following a CrR 3.6 hearing, the trial court denied the motion in an oral ruling. Wright

waived the right to a jury trial and agreed to trial on stipulated facts. The court found him

guilty of the lesser included offense of possession of MDMA and guilty on the count of

5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
7

No. 84223-0 (consol. w/84569-7)

possession of marijuana with intent to distribute.

Mr. Wright appealed and the Court of Appeals affirmed. Wright then filed a

motion for reconsideration in light of Gant, which was granted. This court then issued its

decision in Patton. The Court of Appeals again affirmed based on its determination that

probable cause existed to believe the vehicle contained evidence of the crime of arrest.

State v. Wright, 155 Wn. App. 537, 230 P.3d 1063 (2010)

We granted Wright's petition for discretionary review. Additional facts regarding

the traffic stop are addressed below in connection with Mr. Wright's contention that the

stop was pretextual.

ANALYSIS

The primary issue in both cases before us is whether the warrantless searches of

the defendants' vehicles violated their right to privacy under article I, section 7 of the

Washington Constitution. Article I, section 7 provides that "[n]o person shall be

disturbed in his private affairs, or his home invaded, without authority of law." A privacy

interest in vehicles and their contents is recognized under article I, section 7. State v.

Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010); Patton, 167 Wn.2d at 385.

The protections guaranteed by article I, section 7 are qualitatively different from

those under the Fourth Amendment. State v. Garcia-Salgado, 170 Wn.2d 176, 183, 240

P.2d 153 (2010); Buelna Valdez, 167 Wn.2d at 772; State v. McKinney, 148 Wn.2d 20,

26, 60 P.3d 46 (2002). Warrantless searches are per se unreasonable under our state

constitution, subject to a limited set of carefully drawn exceptions. Garcia-Salgado, 170

8

No. 84223-0 (consol. w/84569-7)

Wn.2d at 184; State v. Tibbles, 169 Wn.2d 364, 368-69, 236 P.3d 885 (2010); State v.

Ringer, 100 Wn.2d 686, 701, 674 P.2d 1240 (1983), overruled on other grounds by State

v. Stroud, 106 Wn.2d 106 Wn.2d 144, 720 P.2d 436 (1986). The State bears the burden

of establishing that an exception to the warrant requirement applies. State v. Kirwin, 165

Wn.2d 818, 203 P.3d 1044 (2009); State v. Vrieling, 144 Wn.2d 489, 494, 28 P.3d 762

(2001).

The exception at issue here is the search incident to arrest, and more specifically,

the search of a vehicle incident to arrest. We recently adjusted our article I, section 7

analysis for a warrantless search of a vehicle incident to arrest of a recent occupant to

bring the exception into conformance with the rationale underlying the exception, just as
the United States Supreme Court did in Gant with regard to the Fourth Amendment.6

In the Fourth Amendment context, New York v. Belton, 453 U.S. 454, 101 S. Ct.

2860, 69 L. Ed. 2d 768 (1981), had been "widely understood to allow a vehicle search

incident to the arrest of a recent occupant even if there was no possibility the arrestee

could gain access to the vehicle at the time of the search." Gant, 129 S. Ct. at 1718. In

Gant, the Court explained that Belton does not authorize a vehicle search incident to a

recent occupant's arrest after the arrestee has been secured and cannot access the interior

of the vehicle. Id. at 1714. The Court explained that to read Belton as it had been widely

read would "untether the [vehicle search incident to arrest] rule from the justifications

6 The Fourth Amendment provides that "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
9

No. 84223-0 (consol. w/84569-7)

underlying . . . the exception." Id. at 1719.

Those justifications, set out in Chimel v. California, 395 U.S. 752, 762-63, 89 S.

Ct. 2034, 23 L. Ed. 2d 685 (1969), are to find and remove weapons that the arrestee

might use to resist arrest or effect an escape and to find and seize any evidence the

arrestee might conceal or destroy -- thus the arrestee's person and the area into which an

arrestee might reach may be searched incident to arrest. In returning to these

justifications, the Court held in Gant that "the Chimel rationale authorizes police to

search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured

and within reaching distance of the passenger compartment at the time of the search."

Gant, 129 S. Ct. at 1719. The Court acknowledged that, as construed, the exception has

limited application because when an officer makes an arrest, any remaining real

possibility of access to weapons and evidence will be rare.

Similarly, under article I, section 7, upon reexamining the issue, we held that "the

search of a vehicle incident to the arrest of a recent occupant is unlawful absent a

reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains

evidence of the crime of arrest that could be concealed or destroyed, and that these

concerns exist at the time of the search." Patton, 167 Wn.2d at 394-95. We disapproved

expansive application of the search-incident-to-arrest exception to the period of time after

the arrestee is secured and attendant risks to officers have passed. In Patton, the vehicle

search-incident-to-arrest exception did not apply because there was no connection

between the suspect, the reason for the arrest, and the vehicle, and therefore the search

10

No. 84223-0 (consol. w/84569-7)

was not incident to an arrest. Id. at 395.

In Buelna Valdez, 167 Wn.2d at 777, we expressly held, under circumstances

directly raising the issue, that "after an arrestee is secured and removed from the

automobile, he or she poses no risk of obtaining a weapon or concealing or destroying

evidence of the crime of arrest located in the automobile, and thus the arrestee's presence

does not justify a warrantless search under the search incident to arrest exception."

Accordingly, we overruled State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986),

where an eight member majority of the court had "broadened the circumstances under

which the exception is applicable" to include the time immediately after the arrest when

the arrestee is secured in a patrol car. Buelna Valdez, 167 Wn.2d at 777; see Stroud, 106

Wn.2d at 152 (lead opinion); see id. at 175 (Durham, J., concurring) (the fact that the

arrestees are in custody in the backseat of a patrol car at the time of a search incident to
arrest is "immaterial").7 Stroud was overruled on this point because its pragmatic

approach did not accord with article I, section 7 and, indeed, permitted the vehicle-search-

incident-to-arrest exception to apply unmoored from its justifications. An arrestee in

handcuffs in the backseat of a patrol car is hardly in a position to grab a weapon or gain

possession of evidence of the crime in the vehicle and conceal or destroy it.

Thus, both under a Fourth Amendment analysis and pursuant to an article I,

section 7 independent state constitutional analysis, a warrantless vehicle search incident

7 Stroud primarily concerned the scope of the vehicle search-incident-to-arrest exception insofar
as it concerned locked containers in the vehicle.
11

No. 84223-0 (consol. w/84569-7)

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 it. Gant, 129 S. Ct.

at 1719; Buelna Valdez, 167 Wn.2d at 777; see Patton, 167 Wn.2d at 394-95.

As mentioned at the outset of this opinion, the Court in Gant identified a second

form of vehicle search incident to arrest. The Court held that "[a]lthough it does not

follow from Chimel, . . . circumstances unique to the automobile context justify a search

incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime

of arrest might be found in the vehicle.'" Gant, 129 S. Ct. at 1719 (quoting Thornton v.

United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (Scalia, J.,

concurring)).

The specific issue raised in the present consolidated cases is whether the Thornton

form of the exception will apply under article I, section 7. We conclude that it does not.

First, the underpinnings of the Thornton version of the exception do not justify its

existence under article I, section 7. The Court in Gant adopted the Thornton exception

given "circumstances unique to the vehicle context." Justice Scalia's concurrence in

Thornton indicates that these circumstances are the mobility of a vehicle and a lower

expectation of privacy in a vehicle. Thornton, 541 U.S. at 631 (Scalia, J., concurring);

see Buena Valdez, 167 Wn.2d at 771 (explaining that the Thornton "search is justified

under the Fourth Amendment because there is a reduced expectation of privacy in an

automobile and that expectation is outweighed by law enforcement needs heightened by

the difficulties arising from an automobile's mobility" (citing Thornton, 541 U.S. at 631

12

No. 84223-0 (consol. w/84569-7)

(Scalia, J., concurring))); see also United States v. Arriaza, 641 F. Supp. 2d 526, 535

(E.D. Va. 2009) (explaining that same considerations as underpin the automobile

exception likely underpin the Thornton exception).

These circumstances are the same factors that justify a search of a vehicle when

there is probable cause to believe it contains evidence of criminal activity, the so-called

"automobile exception" to the warrant requirement recognized under the federal

constitution. The automobile exception allows for a warrantless search of a mobile

vehicle when "there is probable cause to believe [the] vehicle contains evidence of

criminal activity." Gant, 129 S. Ct. at 1721 (citing United States v. Ross, 456 U.S. 798,

820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)); see California v. Carney, 471 U.S.

386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985) (automobile exception justified based on

lower expectation of privacy in a vehicle); Carroll v. United States, 267 U.S. 132, 153-

54, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (warrantless automobile search supported by

probable cause of a crime is lawful due to the mobility inherent in an automobile).

However, although the automobile exception is recognized for purposes of the

Fourth Amendment, it is not recognized under article I, section 7. See Patton, 167 Wn.2d

at 386 n.4; State v. Tibbles, 169 Wn.2d 364, 369, 236 P.2d 885 (2010) (in context of

automobile search where suspect was not arrested; probable cause to search did not

justify search of vehicle -- "the existence of probable cause, standing alone, does not

justify a warrantless search"); Ringer, 100 Wn.2d at 700-01. Although the Thornton

exception is consistent with the rationale underlying the federal automobile exception

13

No. 84223-0 (consol. w/84569-7)

under the Fourth Amendment, it lacks similar support under article I, section 7.8

Nonetheless, the State in both cases urges that a long line of existing Washington

cases supports the Thornton exception or a variant of it. In Wright, for example, the State

contends in its brief that the rule in Washington is that upon an arrest, police "may search

the person and his immediate environs for evidence of the crime or tools which would aid

in the arrested person's escape." State v. Michaels, 60 Wn.2d 638, 642-43, 374 P.2d 989

(1962) (emphasis omitted). According to the State, this rule was approved in Ringer, 100

Wn.2d at 700.

But Ringer in fact overruled the line of cases on which the State relies. Ringer

held that during a search incident to the arrest of a vehicle's driver, an officer may search

the arrestee and the area within his or her immediate control to remove any weapons the

person might try to use to escape or resist arrest and to avoid destruction of evidence of

the crime for which the person is arrested. Id. When referring to Michaels, the court

added that in Michaels "[n]o attempt was made, however, to explain the precise scope of

the limitation of the search to the person of the arrestee 'and his immediate environs'."

8 Mr. Snapp's contention that the Thornton exception should not apply under article I, section 7 is
based on a different understanding of its foundation. He points out that in Thornton Justice Scalia
also expressed the opinion that if the Court was going to continue to rely on Belton searches, it
should do so on the ground of returning to the broader sort of search incident to arrest that had
been allowed prior to Chimel, positing that the real reason for Belton's holding was the "more
general . . . evidence-gathering search" upheld in "United States v. Rabinowitz, 339 U.S. 56, 70 S.
Ct. 430, 94 L. Ed. 2d 653 (1950)." Thornton, 541 U.S. at 629 (Scalia, J., concurring).
However, Rabinowitz was expressly overruled on this point in Chimel. Also, as
mentioned, the Court in Gant explained that Belton had been misapplied and returned Chimel's
vehicle search-incident-to-arrest exception to its origins. It thus seems unlikely that when
adopting the Thornton exception, the Court intended to justify it on the "general evidence-
gathering search" analysis that was expressly overruled in Chimel.
14

No. 84223-0 (consol. w/84569-7)

Ringer, 100 Wn.2d at 697. Ringer did not approve the rule that the State relies upon.

Ringer's continuing validity on the vehicle search incident to arrest has recently

been confirmed and its rule reaffirmed in Patton and Buelna Valdez. Although Ringer

was overruled by Stroud, but in retrospect only temporarily, it was overruled only insofar

as the scope of this rule is concerned because, as explained, in Stroud a majority of the

court held the search could be made immediately after the arrest while the arrestee was

secured in the backseat of a patrol car. However, Stroud did not alter this exception to

the warrant or its justifications, but rather engaged in the fiction that the justifications

were served immediately after the suspect was secured away from the vehicle. On this

point, as noted, Stroud has been overruled. Ringer's holding that the vehicle search

incident to arrest is based on the dual concerns of officer safety and preservation of

evidence stands as valid law, and prior cases that rested on other justifications not

involving these concerns are not controlling precedent.

But the State in Wright and amicus curiae Washington Association of Prosecuting

Attorneys argue that Ringer was not given new life by Patton and Buelna Valdez because
these two decisions do not involve searches for evidence of the crime of arrest.9 We

9 Also, as to whether a warrantless search of a vehicle for evidence of the crime of arrest is lawful
under article I, section 7, the State would have us engage in a Gunwall analysis to determine the
merits of the claims in this case. See State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
Whatever may have been the situation when Ringer and later Gunwall were decided, it is now
settled that a Gunwall analysis is unnecessary under article I, section 7 to determine whether it
should be given independent effect. State v. Athan, 160 Wn.2d 354, 365, 158 P.3d 27 (2007);
State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 (2002). Rather, the only relevant question is
what protection is provided in a particular context. Athan, 160 Wn.2d at 365; McKinney, 148
Wn.2d at 26-27.
15

No. 84223-0 (consol. w/84569-7)

disagree. In both cases we held that Ringer sets forth the relevant law, and in Buelna

Valdez in particular, the scope of the vehicle search incident to arrest was at issue. Both

cases explain that the search incident to arrest exception had been expanded far beyond

its common law origins, specifically citing the cases that the State and amicus urge the

court to reinstate as precedent. Buelna Valdez, 167 Wn.2d at 773-77; Ringer, 100 Wn.2d

690-99. In Buelna Valdez, we found it was necessary to overrule Stroud and return to the

rule set out in Ringer. In this way, we returned to the common law origins of the search

incident to arrest without a warrant and its dual justifications of officer safety and

preservation of evidence.

As we have so frequently explained, article I, section 7 is not grounded in notions

of reasonableness. Rather, it prohibits any disturbance of an individual's private affairs

without authority of law. See Buelna Valdez, 167 Wn.2d at 773. Recognized exceptions

to the warrant constitute authority of law justifying a search in the absence of a warrant,

but only as carefully drawn and narrowly applied. In Patton and Buelna Valdez we

explored at some length the nature and extent of the search incident to arrest exception

and concluded that its scope is delimited by its justifications. Indeed, the reason why the

line of cases urged by the State and amicus has been rejected is because the cases do not

conform to the constitutional underpinnings justifying the exception.

Thus, while it is true that neither Patton nor Buelna Valdez involved a search for

evidence of the crime of arrest, as the State argues, the scope of the vehicle search

incident to arrest was at issue in both. At a fundamental level, the scope of the exception

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itself does not vary based upon the facts.

We also reject the State's proposal made at oral argument that a modified form of

the Thornton exception, so to speak, be applied. The State proposed a vehicle search

incident to arrest exception that would permit a warrantless search based on probable

cause to believe that evidence of the crime of arrest might be found in the vehicle, rather
than a reasonable belief as stated in Gant.1, 11 As we said in Buelna Valdez, "when a

search can be delayed to obtain a warrant without running afoul of" concerns for the

safety of the officer or to preserve evidence of the crime of arrest from concealment or

destruction by the arrestee "(and does not fall within another applicable exception), the

warrant must be obtained. A warrantless search of an automobile is permissible under the

search incident to arrest exception when that search is necessary to preserve officer safety

or prevent destruction or concealment of evidence of the crime of arrest." Id. (emphasis

added). We emphasized that "time is of the essence" because in "some circumstances, a

delay to obtain a search warrant might be shown to provide the opportunity for the

1 We note that in Snapp the Court of Appeals applied the Thornton exception as it was stated in
Gant. In Wright, however, the Court of Appeals engaged in a somewhat different analysis. The
court determined that Wright was arrested for possession of marijuana. Wright, 157 Wn. App. at
542, 553. The court applied Patton and concluded that when Wright was arrested there was a
clear nexus between him, the crime of arrest for possession of the drug, and the vehicle. Id. at
546. The court also said that under State v. Grande, 164 Wn.2d 135, 146, 187 P.3d 248 (2008),
probable cause to search a vehicle arises when an officer with training and experience to identify
the odor of marijuana smells this odor coming from a vehicle. The Court of Appeals said that
because the police had probable cause to arrest Wright for possession of marijuana and to search
the car for evidence of this drug crime, the search of the passenger compartment was
constitutional under article I, section 7.
11 We recently rejected the idea that the existence of probable cause, alone, can justify a
warrantless search of a vehicle. Tibbles, 169 Wn.2d at 369. While probable cause is a necessary
condition for obtaining a warrant, it does not itself justify a search. Id.
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arrestee to procure a weapon or destroy evidence of the crime." Buelna Valdez, 167

Wn.2d at 773 (emphasis added).

Contrary to the urgency attending the search incident to arrest to preserve officer

safety and prevent destruction or concealment of evidence, there is no similar necessity

associated with a warrantless search based upon either a reasonable belief or probable

cause to believe that evidence of the crime of arrest is in the vehicle.

The State in Wright also maintains, however, that Ringer has proved to be

ineffective and counterproductive. Essentially, the State maintains that adhering to the

exception as described in Ringer and confirmed in Patton and Buelna Valdez is too

difficult and onerous. The authority of law to search under article I, section 7 is not

simply a matter of pragmatism and convenience.
In Snapp, the State presents a somewhat confusing argument.12 The State

maintains that exigent circumstances, such as the potential destruction of evidence, can

provide a justification for a warrantless search regardless of whether an arrest has been

effected. This is true; in Patton, for example, the court observed that although the risk of

destruction of evidence and officer safety are described as exigencies justifying the search-

incident-to-arrest exception, the search-incident-to-arrest exception should be

distinguished from the "exigent circumstances exception to the warrant requirement."

12 This may be in part because it is fairly apparent that some of the State's briefing was borrowed
from a different case. For example, the brief refers to arguments about entry into "Gibson's car"
and the "fact that Gibson was arrested on a warrant for an unknown charge." Suppl. Br. of
Resp't at 6-7. It is unknown who Gibson is and the references are obviously not to Snapp's case
or his argument.
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Patton, 167 Wn.2d at 386 n.5. But the exigent circumstances exception to the warrant
requirement is not at issue in these cases.13 The State also explains that the search

incident to arrest is "its own exception" to the warrant requirement. Again, this is true.

The State in Snapp then proceeds to urge the same line of state cases permitting

searches incident to arrest in the absence of any exigencies as are urged in Wright. The

State's argument here seems to be that in these cases this state has already adopted the

same rule that the United States Supreme Court adopted from Justice Scalia's dissent in

Thornton. But as explained, these cases were overruled by Ringer because they had

"allowed the scope of the search incident to arrest exception . . . to far exceed any

historical justification or precedent." Ringer, 100 Wn.2d at 695 (citation omitted)

(addressing several cases including State v. Deitz, 136 Wash. 228, 239 P. 386 (1925),

overruled by Ringer, 100 Wn.2d at 699 and State v. Cyr, 40 Wn.2d 840, 246 P.2d 480

(1952), overruled by Ringer, 100 Wn.2d at 699).

We hold that the Thornton exception does not apply under article I, section 7. We

also reject the proposed modified version of this exception that is based upon probable

cause to believe evidence of the crime of arrest might be found in the vehicle.

Accordingly, we reverse the Court of Appeals in both Snapp and Wright because the

13 We emphasize that our decision in this case involves only the search incident to arrest exception
to the warrant requirement. In a particular case and depending upon the situation, another basis
for a warrantless search might exist such as under the community caretaking exception or the
exigent circumstances exception that applies when delay in obtaining a warrant would
compromise officer safety, aid an escape, or allow evidence to be destroyed. A search might also
occur without a warrant when a vehicle is lawfully impounded. Our holding in the present case
does not affect the application or availability of these or any other recognized exceptions to the
warrant requirement under article I, section 7.
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vehicle searches exceeded that which is permitted under Ringer and Buelna Valdez.

We next turn to additional issues raised by Mr. Wright. Mr. Wright first claims

that Officer Gregorio did not have either probable cause or a reasonable suspicion

justifying the stop of his vehicle. Insofar as he contends that probable cause is necessary,

it is the wrong standard. A valid Terry investigative stop is permissible if the officer can

"point to specific and articulable facts which, taken together with rationale inferences

from those facts, reasonably warrants the intrusion." Terry v. Ohio, 392 U.S. 1, 88 S. Ct.

1868, 20 L. Ed. 2d 889 (1968); see State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573

(2010) ("[a] Terry stop requires a well-founded suspicion that the defendant engaged in

criminal conduct"). A reasonable, articulable suspicion means that there "is a substantial

possibility that criminal conduct has occurred or is about to occur." State v. Kennedy,

107 Wn.2d 1, 6, 726 P.2d 445 (1986). Terry's rationale applies to traffic infractions.

State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996). In reviewing the propriety

of a Terry stop, a court evaluates the totality of the circumstances. Doughty, 170 Wn.2d

at 62; State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).

Wright believes that because RCW 46.37.020 provides that headlights must be on

beginning one-half hour after sunset, and he was stopped 24 minutes after sunset, Officer
Gregorio did not have lawful grounds for stopping him.14 But as the Court of Appeals

determined, the question of a valid stop does not depend upon Wright's actually having

violated the statute. Rather, if Gregorio had a reasonable suspicion that he was violating

14 The trial court took judicial notice of the fact that the sun set at 4:21 p.m.
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No. 84223-0 (consol. w/84569-7)

the statute, the stop was justified.

Officer Gregorio testified that it was dark, cold, and icy when he saw Wright's car,

and Wright does not dispute that it was dark when he was stopped. The vehicle openly

turned and drove away from Gregorio with the headlights still off.

We conclude that Officer Gregorio could rationally believe that a traffic infraction

was being committed. It was very near the time when headlights were required to be

turned on regardless of conditions. It was dark, cold, and icy, and therefore reasonable

for Gregorio to believe that Wright should have had his headlights on without actually

knowing the exact time of sunset and then mentally adding 30 minutes. As mentioned, an

actual violation is not necessary for a valid stop. Moreover, the headlight statute also

provides that headlights must be on "at any other time when, due to insufficient light or

unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly

discernible at a distance of one thousand feet ahead." RCW 46.37.020.

We affirm the Court of Appeals' determination that Officer Gregorio was justified

in stopping Mr. Wright's vehicle on suspicion that a traffic infraction was being

committed.

Mr. Wright next contends, however, that the traffic stop was a pretext for an

unlawful search. The trial court found no pretextual stop, reasoning that Officer Gregorio

saw the infraction and immediately initiated a traffic stop; there was no indication he was

acting outside his routine patrol duties or that he handled the stop any differently from

others; and given the nearly simultaneous timing of his observation of the vehicle, his

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No. 84223-0 (consol. w/84569-7)

observation of the infraction, and his initiation of the stop, there was no time to develop a

motive to conduct a criminal investigation and cover it up with a false reason.

An officer may not use a traffic infraction as a pretext to stop a citizen and search

for evidence of criminal wrongdoing that is unrelated to the reason for the stop. State v.

Ladson, 138 Wn.2d 343, 357-58, 979 P.2d 833 (1999). The officer's motivation in

making the stop must be the traffic infraction, not a desire to arrest the driver and search

for evidence. Police officers may enforce the traffic code, so long as they do not use the

authority to do so as a pretext to conduct an unrelated criminal investigation. In

determining whether a stop is pretextual, the court considers the totality of the

circumstances, including both the subjective intent of the officer and the objective

reasonableness of the officer's behavior. Id.

First, Wright seems to suggest that Officer Gregorio knew at the time he stopped

the car that it was too soon for headlights to be required. As explained, however, it was

reasonable for Gregorio to stop the vehicle for a traffic infraction of driving without

headlights. There is no question that at the suppression hearing Officer Gregorio knew

that the stop occurred 24 minutes after sunset. But the issue of pretext concerns the time

of the stop, not later acknowledgement that, in fact, there were still six minutes to go until

one-half hour after sunset.

Wright maintains that Gregorio identified him as a black male driving a late model

car. However, as explained above in footnote 3, the reference to a black male came in the

course of identifying Wright in court. Officer Gregorio testified that he could not see the

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No. 84223-0 (consol. w/84569-7)

driver of the vehicle but could only see the vehicle without lights. Gregorio testified that

he routinely stopped vehicles with headlights off, and he was on routine patrol at the time

of the stop.

Wright points out, however, that Officer Gregorio identified the area as a "hot

spot" known for burglaries and car prowls. He also says that although he was alone in

the vehicle, Gregorio called for backup.

The State explains, however, that the fact that Gregorio was aware that the area

was known for burglaries and vehicle prowls should not convert a stop into a pretext,

because an officer should not be expected to be unaware of such circumstances in the

area in which he patrols. Further, the State says that Officer Gregorio was justified in

calling for backup because he had decided to stop a vehicle with an unknown number of

occupants (since he could not see inside the vehicle), the vehicle drove away from the

officer when the patrol car came into view, and the area was known for criminal activity.

Wright next says that Officer Larned, the backup officer, wrote in his report that

he was summoned because of "a suspicious vehicle stop," reporting nothing about

headlights that were not on. According to Officer Larned's testimony, a suspicious

vehicle stop would mean instances like a vehicle sitting in an area for an undetermined

amount of time, people sitting in the vehicle in high drug and high crime areas, or driving

slowly through areas in a blacked out vehicle. Larned also wrote in his report that he

responded as a backup on both a traffic infraction and a suspicious vehicle stop.

Wright notes that the first reason that Larned listed for the stop in the affidavit of

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No. 84223-0 (consol. w/84569-7)

probable cause that Larned prepared was that the area was a hot spot for car prowls. This

is not irrelevant, and it could help support a conclusion that a pretextual stop occurred,

depending on other evidence. But it was Officer Gregorio who saw the vehicle without

lights, who watched it appear to abruptly change direction when the patrol car appeared,

and who almost immediately stopped it, not Officer Larned.

Mr. Wright says that when Officer Gregorio approached him the officer said he

pulled him over because he thought he was in a stolen car. Officer Gregorio testified,

however, that he had not told Wright that he stopped him because he believed the vehicle

was stolen, but that during the conversation with Mr. Wright he had indicated that the

area was a hot spot for stolen cars, burglaries, and car prowls.

The evidence supports the trial court's determination that the stop was not

pretextual. Officer Gregorio first saw the vehicle when he noticed it without headlights

on. He promptly pulled toward the vehicle, whereupon it turned around and drove away.

The officer did not follow it to see if he could observe an infraction occurring but instead

stopped it within seconds. Under these circumstances, we affirm the Court of Appeals'

holding that the stop was not pretextual.

CONCLUSION

We hold that the second version of the vehicle-search-incident-to-arrest exception

recognized by the United States Supreme Court in Gant, which we have identified as the

Thornton exception, does not apply under article I, section 7. We also conclude that a

variation of this exception, requiring probable cause to believe that evidence of the crime

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No. 84223-0 (consol. w/84569-7)

of arrest might be found in the vehicle rather than a reasonable belief that such evidence

might be found, is also not a valid form of the vehicle search incident to the arrest of a

recent occupant because neither of the justifications for this exception to the warrant

requirement justify such an exception. Accordingly, we reverse the Court of Appeals in

both cases and remand them for further proceedings consistent with our decision.

In Wright, however, we affirm the Court of Appeals' determinations that the traffic

stop was justified and was not pretextual.

Accordingly, we reverse the Court of Appeals in both cases, reverse the

defendants' convictions, and remand these cases for further proceedings consistent with

our decision herein.

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AUTHOR:
Chief Justice Barbara A. Madsen

WE CONCUR:

Justice Charles W. Johnson Justice Debra L. Stephens

Justice Tom Chambers Justice Charles K. Wiggins

Justice Susan Owens Gerry L. Alexander, Justice Pro Tem.

Justice Mary E. Fairhurst

26