Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 29787-0
Title of Case: State of Washington v. Gabriela Yaserth Barron
File Date: 09/18/2012


SOURCE OF APPEAL
----------------
Appeal from Yakima Superior Court
Docket No: 10-1-01501-4
Judgment or order under review
Date filed: 03/08/2011
Judge signing: Honorable F James Gavin


JUDGES
------
Authored by Dennis J. Sweeney
Concurring: Kevin M. Korsmo
Stephen M. Brown


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

Counsel for Appellant(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
James Patrick Hagarty
Yakima County Prosecuting Attorney's Off
128 N 2nd St Rm 329
Yakima, WA, 98901-2621


David Brian Trefry
Attorney at Law
Po Box 4846
Spokane, WA, 99220-0846







FILED
Sept. 18, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, No. 29787-0-III
)
Respondent, )
)
v. )
) PUBLISHED OPINION
GABRIELA YASERTH BARRON, )
)
Appellant. )
)

Sweeney, J. -- A strip search requires probable cause to believe that evidence of a

crime will be discovered and it requires approval of a police supervisor. Here, the search

was supported only by the defendant's apparent nervousness. That is not enough. We

reverse the conviction for possession of a controlled substance with intent to deliver.

FACTS

Officer Thomas Orth of the Sunnyside Police Department responded to a report of

an assault with a knife on September 6, 2010. He arrived at the scene and found Gabriela

Barron and three others standing in the front yard of a house. Ms. Barron was crying

No. 29787-0-III
State v. Barron

hysterically and her knee was bleeding. She told Officer Orth that Melinda Garcia had

chased her out of Ms. Garcia's nearby house at knife point following a dispute over the

supposed theft of $100 and that she injured her knee in the process.

Officer Orth asked Ms. Barron if she would sit in the back seat of his patrol car

while he and another officer investigated. He explained that she was not under arrest at

that time. Ms. Barron got in the back of the patrol car. Officer Orth took her purse and

placed it in the secured front seat area of the car. Ms. Barron remained locked in the

back of the patrol car for about 20 minutes.

Officer Orth spoke with Ms. Garcia and her roommate, Katie Everham. The two

women confirmed that there had been a physical altercation inside Ms. Garcia's house

over the missing money and that Ms. Barron was eventually chased out of the house. Ms.

Garcia and Ms. Everham both denied the use of a knife. The investigating officers did

not locate a knife or the money alleged to be stolen.

Officer Orth returned to his patrol car and arrested Ms. Barron for disorderly

conduct. He then searched Ms. Barron's purse, the purse he had placed in the front seat,

and found two glass pipes with apparent drug residue and some unused baggies. Officer

Orth took Ms. Barron to the Sunnyside Police Station to be booked.

Once at the station, Officer Orth instructed Dispatch Officer Mary Evialon to

2

No. 29787-0-III
State v. Barron

conduct a strip search of Ms. Barron for concealed narcotics. He was concerned by the

number of unused baggies found in Ms. Barron's purse and the fact that she was acting

nervous and answering questions quickly. Officers Orth and Evialon did not seek a

warrant or permission from a supervisor before they started to search Ms. Barron.

Officer Evialon took Ms. Barron to a changing room and explained the strip search

procedure to her. She clarified that she would not "go hands on unless need be." Report

of Proceedings (Dec. 14, 2010) (RP) at 43. Ms. Barron began crying and stated that she

wanted to come clean and had something concealed. Officer Evialon told Ms. Barron to

start removing her clothes. Ms. Barron took off her pants and then repeatedly asked to

use the restroom while grabbing her genitalia. Officer Evialon told her she could do so

after she was changed but that the toilet would be inspected prior to flushing. Ms. Barron

then pulled her underwear down and removed an envelope from her vagina. The

envelope contained a $20 bill and pieces of aluminum foil containing six-tenths of a gram

of methamphetamine.

Ms. Barron moved to suppress the various pieces of evidence on four separate

grounds: (1) the initial detention in the back of the patrol car lacked any reasonable

suspicion or lawful basis, (2) the arrest for disorderly conduct violated the officer

presence rule which requires that a warrantless arrest occur in the presence of an officer,

3

No. 29787-0-III
State v. Barron

(3) the search of the purse fell outside of the search incident to arrest exception because it

occurred after Ms. Barron was secured and there were no exigent circumstances, and (4)

the strip search violated Washington law because it was conducted without a warrant or

authorization from a supervisor.

The court ruled that Ms. Barron voluntarily entered the patrol car and that exigent

circumstances surrounding the knife incident supported the officer's request. The court

also ruled that the arrest for disorderly conduct outside of the officer's presence fell

within the physical threat of harm exception to the officer presence rule. The court then

ruled that the officer unlawfully searched Ms. Barron's purse and suppressed that drug

evidence. However, the trial court justified the strip search based on Officer Orth's

concern that Ms. Barron acted nervous following her arrest for disorderly conduct and the

court refused to suppress the evidence discovered in that search.

The court found Ms. Barron guilty of possession of a controlled substance with

intent to deliver following a stipulated trial. She appeals. The State does not appeal the

court's suppression of the drug evidence discovered in her purse.

DISCUSSION

Detention in the Patrol Car a Lawful Seizure

Ms. Barron contends the court erred by refusing to suppress all of the evidence

4

No. 29787-0-III
State v. Barron

obtained following her unlawful seizure in the patrol car. We review the denial of a

suppression motion to determine whether substantial evidence supports the trial court's

findings and whether those findings support the conclusions. State v. Hill, 123 Wn.2d

641, 644, 870 P.2d 313 (1994). We review a trial court's conclusions of law de novo.

State v. Eisfeldt, 163 Wn.2d 628, 634, 185 P.3d 580 (2008). We also review de novo

whether police conduct amounted to a seizure. State v. Armenta, 134 Wn.2d 1, 9, 948

P.2d 1280 (1997).

All police seizures of a person, including brief detentions, must be tested against

the Fourth Amendment guarantee of freedom from unreasonable searches and seizures.

U.S. CONST. amend. IV; Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 6 L. Ed. 2d

1081 (1961). A warrantless seizure is considered per se unreasonable unless it falls

within one of the few exceptions to the warrant requirement. State v. Ladson, 138 Wn.2d

343, 349, 979 P.2d 833 (1999). We start by determining whether a seizure actually

occurred and, if it did, then whether it falls within an exception. State v. O'Neill, 148

Wn.2d 564, 574, 62 P.3d 489 (2003).

A citizen is seized when her freedom of movement is restrained and she would not

believe that she is free to leave or decline an officer's request to do something. O'Neill,

148 Wn.2d at 574. The test is objective. State v. Young, 135 Wn.2d 498, 501, 957 P.2d

5

No. 29787-0-III
State v. Barron

681 (1998). Here, Officer Orth arrived at the scene of a reported assault with a knife. He

spoke with Ms. Barron; she was crying hysterically and her knee was bleeding. Officer

Orth then requested that Ms. Barron sit in the back of his patrol car while he investigated

further. She complied and relinquished her purse. The officer put the purse in the front

seat and locked Ms. Barron in the back seat of the patrol car. Objectively, these actions

restrained Ms. Barron's freedom of movement; she was not free to leave. This is a

warrantless seizure.

An investigative stop/detention is an exception to the warrant requirement and is

based upon less evidence than is needed for probable cause to make an arrest. State v.

Glover, 116 Wn.2d 509, 513, 806 P.2d 760 (1991) (citing Terry v. Ohio, 392 U.S. 1, 25-

26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). An investigative detention occurs when the

police briefly seize a person for questioning based on specific and articulable, objective

facts that give rise to a reasonable suspicion that the person has been or is about to be

involved in a crime. State v. Dorey, 145 Wn. App. 423, 429, 186 P.3d 363 (2008)

(quoting Terry, 392 U.S. at 21).

Here, the trial court concluded that exigent circumstances supported the detention

because Officer Orth did not know if Ms. Barron was a victim, witness, or perpetrator.

Ms. Barron argues that Officer Orth had no information implicating her as the perpetrator

6

No. 29787-0-III
State v. Barron

following his initial investigation and, accordingly, had no authority to detain her. The

State responds that Ms. Barron's claim that she was a victim to or witness of an assault

involving a knife amounted to exigent circumstances.

Police may not stop potential witnesses to the same extent as suspects of a crime.

See Dorey, 145 Wn. App. at 426. In Dorey, we considered whether police may stop and

detain a potential witness when investigating a disturbance complaint where no exigent

circumstances existed. Id. at 428. There, the responding officer asked a man at a nearby

car wash for identification and information regarding the complaint. Id. at 426. After the

man left, the officer checked for outstanding warrants and found some. Id. The officer

went after the man and found him minutes later getting out of his car and tossing a fanny

pack into the bushes. Id. at 426-27. The man was arrested on the warrants and charged

with possession of the methamphetamine found in the fanny pack. Id. at 427. We

concluded that the arrest was unlawful because the officer had no particular articulable

suspicion of involvement in criminal activity. Id. at 435.
We quoted State v. Carney1 for the proposition that "'[t]here is no

authority -- either statutory or otherwise -- permitting an officer to seize a witness without

a warrant, absent exigent circumstances or officer safety.'" Dorey, 145 Wn. App. at 429

(quoting State v. Carney, 142 Wn. App. at 203). Exigent circumstances necessary for

1 142 Wn. App. 197, 174 P.3d 142 (2007).

7

No. 29787-0-III
State v. Barron

detaining a witness exist when: (1) a serious crime recently occurred, (2) the officer

reasonably believes that the witness's information will materially assist in the

investigation, and (3) the detention is reasonably necessary for identification or

investigation purposes. Dorey, 145 Wn. App. at 426 (quoting American Law Institute, A

Model Code of Pre-Arraignment Procedure ยง 110.0(1)(b) (1975)).

Here there were the necessary exigent circumstances. Officer Orth was summoned

to investigate a disturbance that was anything but innocuous -- an alleged assault with a

deadly weapon. Officer Orth found Ms. Barron in the front yard of a neighbor's house,

hysterical and wounded. She admitted that she had a fight involving a knife over an

alleged theft. At that point, Officer Orth did not know if she was a victim or a perpetrator

but he knew she was a witness. And Officer Orth reasonably believed that Ms. Barron's

information would materially assist in his investigation. The brief detention in the back

of the patrol car was lawful and the court correctly refused to suppress the evidence on

that ground.

Arrest for Disorderly Conduct

Ms. Barron next contends that the trial court erred by denying her motion to

suppress because Officer Orth did not have probable cause to arrest her for disorderly

conduct. Whether there is probable cause to arrest is a legal question that we review de

8

No. 29787-0-III
State v. Barron

novo. State v. Grande, 164 Wn.2d 135, 140, 187 P.3d 248 (2008).

Probable cause requires a showing that "the facts and circumstances within the

arresting officer's knowledge and of which the officer has reasonably trustworthy

information are sufficient to warrant a person of reasonable caution in a belief that an

offense has been committed." State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295

(1986). The determination rests on "the totality of facts and circumstances within the

officer's knowledge at the time of the arrest." State v. Fricks, 91 Wn.2d 391, 398, 588

P.2d 1328 (1979).

Ms. Barron argues that Officer Orth did not have probable cause to arrest because

he did not witness the fight or even see her run outside the house. Police must personally

witness the crime in order to make a warrantless arrest for most misdemeanor and gross

misdemeanor offenses. RCW 10.31.100. But felony offenses and misdemeanors

involving physical harm to a person or the unlawful taking of property have no such

requirement. RCW 10.31.100(1). Officer Orth arrived at the scene and saw Ms. Barron

and three others standing in the front yard of a neighbor's house. Ms. Barron was crying

hysterically and her knee was bleeding. She informed Officer Orth that Melinda Garcia

had assaulted her with a knife over the alleged theft of $100. Ms. Garcia corroborated

much of the story. These undisputed facts create more than a suspicion that Ms. Barron

9

No. 29787-0-III
State v. Barron

and Ms. Garcia fought and that $100 was stolen. Based on the totality of the

circumstances, Officer Orth had probable cause to believe either crime had been

committed. He decided, however, to charge both women with disorderly conduct for

their actions inside and outside of the house.

Ms. Barron argues that the fight between her and Ms. Garcia could not be

disorderly conduct under either the Sunnyside Municipal Code or state statute because it

occurred inside a house, not in a public place. Sunnyside Municipal Code

9.60.010(A)(1), (2) defines disorderly conduct as when a person "[f]ights, quarrels or

encourages others to fight in any public place" or if a person "[b]y noisy, riotous or

tumultuous conduct, disturbs the peace . . . of the City." RCW 9A.84.030(a), (b) defines

disorderly conduct as when a person "[u]ses abusive language and . . . intentionally

creates a risk of assault; [or] intentionally disrupts any lawful assembly or meeting or

persons without lawful authority."

Both women admitted to Officer Orth that the fight started inside the house, and

that Ms. Barron was chased outside and injured her knee. Ms. Barron's behavior

amounted to conduct that disturbed the peace. The arrest was lawful and the court

appropriately refused to suppress on that ground.

Strip Search

10

No. 29787-0-III
State v. Barron

Finally, Ms. Barron contends the trial court erred in denying her motion to

suppress because Officer Orth did not have probable cause to believe that a strip search

was necessary to discover drugs. Again, we review written findings entered after a

suppression hearing for substantial evidence and the court's conclusions of law de novo.

Hill, 123 Wn.2d at 644; Eisfeldt, 163 Wn.2d at 634.

RCW 10.79.130 authorizes a warrantless strip search. RCW 10.79.130(1)(a)

authorizes a strip search without a warrant if there is a reasonable suspicion that a strip

search is necessary to discover weapons or drugs concealed on a person in custody that

constitute a threat to the security of the facility. A reasonable suspicion has been

described as a substantial possibility that criminal conduct has occurred or is about to

occur. State v. Harris, 66 Wn. App. 636, 643, 833 P.2d 402 (1992).

RCW 10.79.130 provides in part:

(1) No person to whom this section is made applicable by RCW 10.79.120
may be strip searched without a warrant unless:
(a) There is a reasonable suspicion to believe that a strip search is
necessary to discover weapons, criminal evidence, contraband, or other
thing concealed on the body of the person to be searched, that constitutes a
threat to the security of a holding, detention, or local correctional facility[.]
. . . .
(2) For the purposes of subsection (1) of this section, a reasonable
suspicion is deemed to be present when the person to be searched has been
arrested for:
(a) A violent offence as defined in RCW 9.94A.030 or any successor
statute;
(b) An offense involving escape, burglary, or the use of a deadly

11

No. 29787-0-III
State v. Barron

weapon; or
(c) An offense involving possession of a drug or controlled substance
under chapter 69.41, 69.50, or 69.52 RCW or any successor statute.

Division One of this court addressed the reasonable suspicion exception to a

warrantless strip search in State v. Audley, 77 Wn. App. 897, 905-08, 894 P.2d 1359

(1995). In Audley, the defendant was arrested for possession of a controlled substance

with intent to deliver, and the officer saw him reaching down the front of his pants to

retrieve suspected cocaine. Id. at 908 n.11. The officer testified that the crotch area was

a common place to hide drugs. Id. Division One held that a reasonable suspicion was

clearly present based on the crime for which the defendant was arrested and his conduct

prior to arrest. Id. at 908.

But the facts here are distinguishable. Ms. Barron was arrested for disorderly

conduct -- not an offense that could support a reasonable suspicion on its own. And the

court ruled that the search of Ms. Barron's purse that followed her arrest was improper

because it was held by Officer Orth in a separate location prior to arrest. The court

suppressed that drug evidence. The court nonetheless concluded that Officer Orth had

reasonable suspicion to order the jailhouse strip search based on Ms. Barron's

nervousness:

21. Officer Orth transported the defendant to the Sunnyside jail. Based
on what was in the purse, and upon her nervousness and appearance
alone, Officer Orth requested a female to conduct a strip search of

12

No. 29787-0-III
State v. Barron

the defendant.
22. Dispatch Officer Mary Evialon, of the Sunnyside Police Department,
took the defendant to the restroom for her to be strip searched
pursuant to Sunnyside Police Department regulations and standards.
23. Officer Orth testified that no supervisor was requested to approve or
advised as to the strip search of Ms. Barron.
24. No warrant for the strip search or the search of the purse was
obtained.
25. While the defendant was fully clothed, she repeatedly asked to use
the restroom while touching her genitalia. Officer Evialon denied
Ms. Barron's request to use the restroom.
26. Officer Evialon instructed the defendant on how to undress. Ms.
Barron removed her socks, pants and then pulled her panties to the
mid thigh area.
27. Officer Evialon did not touch the defendant at any time during the
search.
28. The defendant repeatedly told Officer Evialon that she wanted
Officer Orth to know about something.
29. Officer Evialon asked the defendant to remove what she was hiding.
30. The defendant removed a letter sized envelope from inside her
vagina.

Clerk's Papers at 77-78 (Findings of Fact) 21-30. So the drug evidence from the purse

had been suppressed and the arrest was for a nonviolent crime. Officer Orth could then

only have relied on Ms. Barron's nervousness to support the strip search. That alone did

not provide a substantial possibility that she was concealing drugs. See Harris, 66 Wn.

App. at 643. We assume that many, if not most, people will react with a level of

nervousness when they are arrested.

The State contends that Ms. Barron's actions in the changing room prior to the

13

No. 29787-0-III
State v. Barron

search provided the reasonable suspicion necessary for the full strip search. The court

found that once in the room Ms. Barron repeatedly asked to use the restroom while

grabbing her genitalia. The court also found that Officer Evialon instructed her to

undress only after Ms. Barron started acting nervous. But Officer Evialon testified that

she gave the strip search instructions before Ms. Barron's unusual behavior:

[I] [w]ent into the dressing room with her. I told her what I was
there for, told her I don't go hands on unless need be, that she needed to
take all her clothes off to make sure that she wasn't concealing anything.
Before she even removed anything, any part of her clothing, she huddled in
the corner and started crying, said that she wanted to come forth, come
clean, that she had something concealed and she wanted me to make sure
that I told Officer Orth that she came forward before I had to find it.

RP at 43.

Ms. Barron was taken to a private room, threatened with a possible "hands on"

strip search, and then broke down emotionally. This retroactive reasonable suspicion is

not what the law contemplates. RCW 10.79.130. Ms. Barron's nervousness standing

alone is not sufficient to support this strip search.

Ms. Barron also contends that the strip search was unlawful because police did not

obtain prior approval from a supervisor as required by RCW 10.79.140(2).

RCW 10.79.140 provides in part:

(1) A person to whom this section is made applicable by RCW
10.79.120 who has not been arrested for an offense within one of the
categories specified in RCW 10.79.130(2) may nevertheless be strip

14

No. 29787-0-III
State v. Barron

searched, but only upon an individualized determination of reasonable
suspicion or probable cause as provided in this section.
(2) With the exception of those situations in which reasonable
suspicion is deemed to be presented under RCW 10.79.130(2), no strip
search may be conducted without the specific prior written approval of the
jail unit supervisor on duty.

(Emphasis added.)

Ms. Barron was neither arrested for the crimes set out in RCW 10.79.130(2) nor

did her nervousness support a reasonable suspicion. Police must then have obtained

written approval from the jail supervisor before ordering the warrantless strip search here.

While at least one court has held that suppression is not the appropriate remedy for

violation of the writing requirement of RCW 10.79.140(2), that same court found a

reasonable suspicion supported the search. See Harris, 66 Wn. App. at 644. We do not

have that here. The evidence discovered during the unlawful search should have been

suppressed.

We reverse the conviction.

_______________________________
Sweeney, J.

WE CONCUR:

______________________ ________________________________

15

No. 29787-0-III
State v. Barron

Korsmo, C.J. Brown, J.

16