* State Of Washington, Respondent V. Stephen Lee Vanness, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
STEPHEN LEE VANNESS,
Appellant.
No. 70839-2-1
DIVISION ONE
PUBLISHED OPINION
FILED: 	March 2, 2015
Leach, J. — Stephen Lee VanNess appeals his conviction for possession
of heroin and possession of methamphetamine with intent to deliver. 	He claims
that a postarrest search of a locked box police found in his backpack violated the
S 	coo
Fourth Amendment to the United States Constitution and article I, section 7 of tfie 	: •§
Washington State Constitution. 	Because the State does not show that this
search meets any exception to the warrant requirements of these provisions, tfif 	vz^l
CO 	.; C
search violated the state and federal constitutions. 	The police based a 	later 	or
request 	for 	a 	warrant 	to 	search 	the 	box 	solely 	on 	observations 	from this
unconstitutional search. Thus, the controlled substances the State found when
executing 	the 	warrant must 	be suppressed 	as fruits 	of the 	poisonous tree.
Therefore, 	we do 	not 	reach 	the 	issues VanNess 	raises 	in his 	statement of
additional grounds. 	We reverse and remand for proceedings consistent with this
opinion.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70839-2-1 / 2
FACTS
On November 29, 2012, the Everett Police Department received a citizen
report about seeing Stephen Lee VanNess. 	The dispatcher informed responding
Officer Robert Edmonds that VanNess had warrants out for his arrest. 	Edmonds
obtained a physical description, made contact with VanNess, and arrested him.
When arrested, VanNess was wearing a backpack and carrying a bag. 	Edmonds
removed 	the 	backpack. 	A 	second 	officer 	arrived. 	Edmonds 	handcuffed
VanNess, walked him and his bags to the patrol car, and placed the backpack on
top of the car trunk. 	A third officer arrived.
Edmonds 	asked 	VanNess 	for 	permission 	to 	search 	the 	backpack.
VanNess did not respond. 	Everett Police 	Department had 	a policy requiring
officers to search backpacks for dangerous items, adopted after an officer had
failed 	to 	search 	a 	backpack and, 	after transporting 	it to 	the 	police 	station,
discovered 	a 	pipe 	bomb 	inside. 	Following that 	policy, 	Edmonds 	searched
VanNess's 	backpack. 	During the 	search, 	at 	least 	one 	officer stood 	near
VanNess 	next 	to 	the 	right 	rear 	passenger 	door 	of 	Edmonds's 	patrol 	car.
Edmonds found 	three 	knives 	attached 	to 	the 	exterior of the 	backpack and
another inside. 	Edmonds then arrested VanNess for possessing these knives
because their blade length made them dangerous weapons under the Everett
Municipal Code.
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No. 70839-2-1 / 3
In VanNess's backpack Edmonds also found a box measuring six inches
by four inches by two inches, locked with a three-number combination lock.
Edmonds asked VanNess if he could search the locked box. 	Again, VanNess did
not respond. 	When Edmonds asked if the box contained anything dangerous,
VanNess continued his silence. 	In an earlier case, Officer Edmonds executed a
warrant to search a vehicle and discovered a box of similar size that contained a
dangerous handgun. 	Edmonds used a flathead screwdriver to pry open the box
one-quarter to one-half inch. 	He looked inside and did not see any dangerous
item but saw evidence of controlled substances. 	In his later affidavit of probable
cause, he stated that he saw a scale and small plastic "baggies" and smelled
vinegar, which he associated with heroin. 	Edmonds stopped his search, returned
the box to the backpack, and sealed the backpack. 	He delivered it to the Everett
Police Department's property room.
Edmonds applied for and received a warrant to search the box. When he
searched the box, he found suspected methamphetamine and 	heroin, a digital
scale, a glass pipe, and several plastic baggies. 	The State charged VanNess
with 	possession 	of 	heroin 	with 	intent 	to 	deliver 	and 	possession 	of
methamphetamine with intent to deliver.
The trial court denied VanNess's motion to suppress evidence of the box
contents, 	concluding 	that 	Edmonds 	lawfully searched 	the 	backpack and 	the
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No. 70839-2-1/4
locked box incident to VanNess's arrest. 	The court noted its concern for officer
safety and 	reasoned 	that 	because 	officers found 	knives outside and 	in the
backpack, the box could have also contained dangerous materials. 	The court
ruled that officers conducted a proper inventory search of VanNess's backpack
but ruled that the inventory search exception did not justify a warrantless search
of the locked box. 	It then found that the items discovered in the box during the
search incident to arrest established probable cause to obtain a warrant.
At trial, the court admitted the evidence the police found in the locked box.
A jury found VanNess guilty of possession of heroin and guilty of possession of
methamphetamine with intent to deliver. 	VanNess appeals.
STANDARD OF REVIEW
A Washington court must presume that a warrantless search violates both
the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington State Constitution.1 	The State carries the heavy burden to prove
that a narrowly drawn exception to the warrant requirement applies to make the
search lawful.2 	We review de novo a trial court's conclusions of law about a
suppression request.3
1 State v. Kirwin. 165 Wn.2d 818, 824, 203 P.3d 1044 (2009).
2 Kirwin, 165 Wn.2d at 824.
3 State v. Hinton. 179 Wn.2d 862, 867, 319 P.3d 9 (2014) (citing State v.
Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011)); State v. Brock, 182 Wn.
App. 680, 685, 330 P.3d 236 (2014), review granted, No. 90751-0 (Wash. Jan. 7,
2015).
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No. 70839-2-1 / 5
This 	court 	also 	reviews 	de 	novo 	a 	trial 	court's 	assessment 	of 	a
magistrate's 	probable cause determination when issuing a 	search 	warrant.4
When an 	investigating officer properly applies for a warrant and a magistrate
determines probable cause exists, on appeal we resolve all doubts in favor of a
warrant's validity.5 	But "[w]hen an unconstitutional search or seizure occurs, all
subsequently 	uncovered evidence 	becomes 	fruit 	of the 	poisonous tree.6 	If
unconstitutionally obtained information provides the only basis for a warrant, the
court must suppress evidence seized under the warrant.7
ANALYSIS
VanNess contends that Edmonds's warrantless search of the locked box
violated both the Fourth Amendment and article I, section 7. 	The State asserts
that the search incident to arrest and inventory exceptions to the constitutional
warrant requirements validate this search. We agree with VanNess.
The Fourth Amendment protects people from unreasonable searches and
seizures.8 	Article I, section 7 of the Washington Constitution further narrows the
State's authority to search.9 	It ensures that "[n]o person shall be disturbed in his
4 State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).
5 State v. Lyons, 	174 Wn.2d 354, 360, 275 P.3d 314 (2012); State v.
Fisher, 96 Wn.2d 962, 964, 639 P.2d 743 (1982).
6 State v. Ladson. 138 Wn.2d 343, 359, 979 P.2d 833 (1999).
7 State v. Young. 123 Wn.2d 173, 196, 867 P.2d 593 (1994).
8 U.S. Const, amend. IV.
9 State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009) (citing York v.
Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 305-06, 178 P.3d 995 (2008)).
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No. 70839-2-1 / 6
private affairs, or his home invaded, without authority of law."10 	Because our
state 	constitution 	provides 	greater 	protection 	of 	individual 	privacy, 	when
presented with arguments under the state and federal constitutions, Washington
courts first examine the state argument.11 	We determine if the challenged state
act involved a disturbance of private affairs and then ask whether the law justifies
the intrusion.12
A warrantless search is per se unreasonable, unless the State can prove a
"carefully drawn and jealously guarded exception[ ]" applies.13 	These exceptions
include a search incident to arrest14 and an inventory search.15 	If an exception
does not apply, a warrantless search is illegal and the exclusionary rule prevents
the State from presenting the illegally seized evidence.16
We first 	consider 	if the 	search 	incident to 	arrest exception 	validates
Edmonds's warrantless search of the locked box. 	VanNess does not challenge
10 Wash. Const, art. I, §7.
11 State v. MacDicken, 179 Wn.2d 936, 940, 319 P.3d 31 (2014).
12 York, 163Wn.2dat306.
13 State v. Bvrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013) (quoting State
v. Bravo Ortega, 177Wn.2d 116, 122, 297 P.3d 57 (2013)).
14 United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d
427 (1973); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969); Arizona v. Gant. 556 U.S. 	332, 129 S. Ct. 1710, 173 L. 	Ed. 2d 485
(2009); Bvrd, 178 Wn.2d at 617.
15 State v. Tyler, 177 Wn.2d 690, 302 P.3d 165 (2013); South Dakota v.
Qpperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
16 State v. Eseriose, 171 Wn.2d 907, 913, 259 P.3d 172 (2011).
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No. 70839-2-1 / 7
the lawfulness of his arrest. 	Citing State v. Bvrd,17 the State contends that this
lawful arrest provided it with the authority to search both the backpack and the
locked 	box without any 	further 	justification because 	a 	valid custodial 	arrest
justifies the search of all objects found 	on the arrested person. 	While Bvrd
provides some support for the State's position, that case did not involve a locked
container. 	Additionally, the 	Supreme Court's subsequent decision 	in Riley v.
California18 significantly narrowed the 	primary authority cited in 	Bvrd for the
scope of a warrantless search incident to arrest.
In Bvrd, decided in 2013, the Washington Supreme Court considered the
validity of a warrantless search of Byrd's purse, seized from her lap and set on
the ground by the police when arresting Byrd.19 	Following the categorical rule
announced in United States v. Robinson,20 the court held that the lawful arrest of
Byrd justified the search of her person and all objects on or closely associated
with 	her person at the time of her arrest, including 	her purse.21 	The court
expressly rejected any need to further justify this search by concerns for officer
safety or evidence preservation concerns.22
17 178 Wn.2d 611,310 P.3d 793 (2013).
is 	U.S. 	, 134 S. Ct. 2473, 2484, 189 L Ed. 2d 430 (2014).
19 Bvrd, 178 Wn.2d at 617-25; Robinson, 414 U.S. at 235.
20 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).
21 Byrd, 178 Wn.2d at 625.
22 Bvrd. 178Wn.2dat625.
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No. 70839-2-1 / 8
In Riley, 	decided 	in 2014, 	the 	Supreme 	Court 	narrowed 	the 	search
incident to arrest exception, 	holding that police generally may not search the
digital information on a cell phone seized from a person at the time of arrest.23
The Court noted the long and checkered history of this exception.24 	It began its
analysis by stating the following guiding principle:
Absent more 	precise guidance from the founding 	era, we
generally determine whether to exempt a given type of search from
the 	warrant 	requirement "by assessing, 	on the 	one 	hand, 	the
degree to which it intrudes upon an individual's privacy and, on the
other, the 	degree 	to which 	it 	is needed 	for the 	promotion 	of
legitimate governmental interests."1251
It then 	looked at its earlier application of the underlying reasons for a
warrantless search incident to arrest by reviewing three related precedents that
set forth 	the 	rules for this search. 	The Court described 	the first, 	Chimel 	v.
California.26 as laying the groundwork for most existing search incident to arrest
doctrine.27 	It 	noted 	that 	Chimel 	provided 	this 	rule 	for 	assessing 	the
reasonableness of a search incident to arrest:
"When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that
the latter might seek to use in order to resist arrest or effect his
escape. 	Otherwise, the officer's safety might well be endangered,
23 Riley, 134 S. Ct. at 2484-85.
24 Riley, 134 S. Ct. at 2482-83.
25 Riley, 134 S. Ct. at 2484 (quoting Wyoming v. Houghton. 526 U.S. 295,
300, 119 S. Ct. 1297, 143 L Ed .2d 408 (1999)).
26 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
27 Riley, 134 S. Ct. at 2483.
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No. 70839-2-1 / 9
and the arrest itself frustrated. 	In addition, it is entirely reasonable
for the arresting officer to search for and seize any evidence on the
arrestee's 	person 	in 	order 	to 	prevent 	its 	concealment 	or
destruction. .. . There is ample justification, therefore, for a search
of the 	arrestee's 	person 	and 	the 	area 	'within 	his 	immediate
control'—construing that phrase to mean the area from within which
he might gain possession of a weapon or destructible evidence."[28]
The Court next summarized Robinson, which it said applied the Chimel
analysis to a search of an arrestee's person and adopted the rule that a search of
the person incident to a custodial arrest based upon probable cause requires no
additional 	justification.29 	It 	noted 	that the underlying 	basis for 	this 	search
remained 	the 	need 	to 	disarm 	and 	to discover evidence 	but 	untethered 	the
reasonableness of this search from the specific facts of each case.30
Finally, the Court summarized Arizona v. Gant,31 which it said recognized
that "the Chimel concerns for officer safety and evidence preservation underlie
the search incident to arrest exception" in the context of analyzing a search of an
arrestee's vehicle.32
The 	Riley 	Court 	acknowledged 	that 	a 	mechanical 	application 	of
Robinson's categorical rule might support the warrantless searches at issue but
rejected this approach.33 	It distinguished the search of cell phone data from that
28 Riley, 134 S. Ct. at 2483 (alteration in original) (quoting Chimel. 395
U.S. at 762-63).
29 Riley, 134 S. Ct. at 2483.
30 Riley, 134 S. Ct. at 2483.
31 556 U.S. 332, 129 S. Ct. 1710, 173 L Ed. 2d 485 (2009).
32 Riley, 134 S. Ct. at 2484.
33 Riley. 134 S. Ct. at 2484.
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No. 70839-2-1/10
of physical objects found on a person, such as the cigarette pack in Robinson,
and declined to extend Robinson. 	It concluded that "[a] search of the information
on 	a cell phone bears little resemblance to the type of brief physical search
considered 	in 	Robinson."34 	The 	Riley 	Court 	observed, 	"A conclusion 	that
inspecting the contents of an arrestee's pockets works no substantial additional
intrusion on 	privacy beyond the arrest itself may make sense as applied to
physical items, but any extension of that reasoning to digital data has to rest on
its own bottom."35
The 	Riley 	Court 	did 	not 	apply 	the 	'"case-by-case 	adjudication'" 	that
Robinson rejected.36 Instead, it considered if application of the search incident to
arrest doctrine to cell phone digital content searches would "'untether the rule
from the justifications underlying the Chimel exception.'"37 	It did so by examining
the Chimel concerns of harm to officers and destruction of evidence and did not
find them to be prevalent in the cell phone context.38
The 	Riley Court then examined 	an arrestee's 	privacy interests 	in cell
phone 	content. 	It recognized 	both 	a 	quantitative 	and 	qualitative 	difference
between cell phones and 	other physical objects that 	might 	be 	found 	on 	an
34 Rilev. 134 S. Ct. at 2485.
35 Rilev. 134 S. Ct. at 2489.
36 Rilev. 134 S. Ct. at 2485.
37 Rilev, 134 S. Ct. at 2485 (quoting Gant. 556 U.S. at 343).
38 Riley, 134 S. Ct. at 2485-87.
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No. 70839-2-1 /11
arrestee's person.39 	While Rilev distinguishes cell phone data from 	physical
objects associated with one's person, it also suggests that Robinson does not
permit an unlimited search of items on an arrestee's person when an arrestee
has a significant privacy interest in the item to be searched.40 	Physical items
such as wallets and purses do not hold a significant privacy interest.41 	But "when
'privacy-related concerns are weighty enough' a 'search may require a warrant,
notwithstanding the diminished expectations of privacy ofthe arrestee.'"42
After Rilev, a lawful arrest no longer provides categorical justification to
search, without a warrant, all items found on an arrested person at the time of
arrest. 	Instead, if the item to be searched falls within a category that implicates
an arrestee's significant privacy interests, the court must balance the government
interests against those 	individual 	privacy interests. 	Only when government
interests in officer safety and evidence preservation exceed an arrestee's privacy
interest in the category of item to be searched may it be searched incident to
arrest without a warrant.43
39 Rilev. 134 S. Ct. at 2489.
40 See RHey, 134 S. Ct. at 2484.
41 Rilev. 134 S. Ct. at 2488.
42 Rilev, 134 S. Ct. at 2488 (quoting Maryland v. King 	U.S. 	, 133
S. Ct. 1958, 1979, 186 L. Ed. 2d 1 (2013)).
43 Rilev, 134 S. Ct. at 2484.
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No. 70839-2-1/12
The Washington Supreme Court has stated that this balancing of interests
is not appropriate under article I, section 7.44 	However, in the context of a locked
container, it has twice "considered the underlying rationale of the search incident
to arrest exception—the danger that an 	individual may secure a 	weapon or
conceal or destroy evidence of the crime of arrest."45 	In each case, "[t]he court
held that locked containers did not raise either concern because '[t]he individual
would have to spend time unlocking the container, during which time the officers
have an opportunity to prevent the individual's access to the contents of the
container.'"46
While State v. Stroud47 and 	State v. Valdez48 each 	involved a 	locked
container found 	in 	an 	automobile, 	the 	court's 	consideration 	of the 	Chimel
concerns applies just as well to the facts of our case:
Where a container is locked and officers have the opportunity to
prevent the individual's access to the contents of that container so
that officer safety or the preservation of evidence of the crime of
arrest 	is 	not 	at 	risk, there 	is 	no justification 	under the 	search
incident to arrest exception to permit a warrantless search of the
locked container.[49]
44 Valdez, 167 Wn.2d at 775-76.
45 Valdez, 167 Wn. 2d at 776.
46 Valdez, 167 Wn.2d at 776 (quoting State v. Stroud. 	106 Wn.2d 144,
152, 720 P.2d 436 (1986), overruled on other grounds by Valdez, 167 Wn.2d at
776-77).
47 106 Wn. 2d 144, 720 P.2d 436 (1986).
48 167 Wn.2d 761, 224 P.3d 751 (2009).
49 Valdez, 167 Wn.2d at 776-77.
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No. 70839-2-1/13
The State argues that Bvrd and State v. MacDicken50 preclude an analogy
to vehicle searches because search of a vehicle "encompasses a separate and
analytically distinct concept permitting search of the area within the immediate
control 	of the 	arrestee." 	However, 	Riley's 	rejection 	of 	the 	categorical 	rule
announced in Robinson and its reliance upon an analysis of the Chimel concerns
preclude the State's reliance upon the analytical differences between searches of
vehicles and of objects found on the arrestee's person. 	We must consider, and
the State does not address, the Washington Supreme Court's determination that
the justification for a search incident to arrest does not apply to locked containers
separated from the arrestee's person.
At 	the 	time 	of 	VanNess's 	arrest, 	the 	arresting 	officers 	removed 	his
backpack, which contained the locked box. 	Officer Edmonds then handcuffed
VanNess and walked him and the backpack to the patrol car. 	Officer Edmonds
put the backpack on the trunk of his patrol car while VanNess stood next to the
right passenger side of the car with another officer present. 	VanNess no longer
had access to the contents of his backpack. 	In addition, a combination lock
separated VanNess from the locked box's contents.
While Officer Edmonds found knives on and inside the backpack, in his
affidavit of probable cause he did not rely on their presence near the locked box
50 179 Wn.2d 936, 319 P.3d 31 (2014).
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No. 70839-2-1 /14
to justify his opening of the box. 	Officer Edmonds did not raise a concern for his
own immediate safety as a reason to search the box. 	Instead, he referenced his
previous experience opening a similar box when executing a warrant and finding
a loaded handgun. 	The State does not explain why Officer Edmonds waited for a
warrant then but could not have waited for a warrant here.
Since Officer Edmonds arrested VanNess on 	outstanding warrants, the
State cannot show that Officer Edmonds reasonably believed evidence relevant
to the crime of arrest would be found in the locked box.51
We next consider the State's assertion that the inventory search exception
to the warrant requirement justified the search of the locked box.52 	Officers may
conduct a warrantless inventory search without violating section I, article 7 or the
Fourth Amendment.53 	Unlike a probable cause search and search incident to
arrest, 	officers 	conducting 	an 	inventory search 	perform 	an 	administrative 	or
caretaking function.54
51 Valdez, 167 Wn.2d at 778.
52 VanNess assigns error to the court's conclusion that the 	inventory
search exception justified the search of his backpack. 	VanNess does not support
this contention with citation to authority or reference to the record, 	required for
this court's proper review of the issue. 	Cowiche Canyon Conservancy v. Boslev,
118 Wn.2d 	801, 	809, 	828 	P.2d 	549 	(1992). 	Further, 	VanNess 	admits the
constitutionality of the search of his backpack as incident to arrest, resolving the
issue.
53 Tyler. 177 Wn.2d at 701: Colorado v. Bertine, 479 U.S. 367, 371, 107 S.
Ct. 738, 93 L. Ed. 2d 739 (1987).
54 State v. Smith, 76 Wn. App. 9, 13, 882 P.2d 190 (1994).
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No. 70839-2-1/15
Officers may conduct a warrantless inventory search (1) to protect the
arrestee's property, (2) to protect the government from false claims of theft, and
(3) to protect police officers and the 	public from 	potential danger.55 	Courts
generally 	uphold 	inventory 	searches 	conducted 	according 	to 	standardized
procedures which do not afford police officers excessive discretion and when
they serve a purpose other than discovery of evidence.56
But an officer's compliance with an established police procedure does not
constitutionalize 	an 	illegal 	search.57 	Also, 	Washington 	courts have applied
stricter rules to an inventory search of a locked container. 	For example, absent a
showing of manifest necessity, article I, section 7 prohibits an inventory search of
a locked vehicle trunk.58
The State claims that the inventory search exception applies to Officer
Edmonds's search of VanNess's locked box because he searched it to protect
officer safety when transporting goods to the police station. 	VanNess responds
that the State could not prove the manifest necessity needed to justify the search
of a locked container.
55 Tyler. 177 Wn.2d at 701; South Dakota v. Qpperman, 428 U.S. 364,
369, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
56 Smith, 76 Wn. App. at 13-14 (citing Bertine, 479 U.S. at 375-76).
57 State v. White, 135 Wn.2d 761, 771, 958 P.2d 982 (1998).
58 White, 135Wn.2dat771.
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No. 70839-2-1/16
At the CrR 3.6 suppression hearing, Officer Edmonds did not identify any
evidence 	that 	the 	locked 	box 	contained 	any 	dangerous 	item 	or 	otherwise
presented a safety issue. 	His use of a screwdriver to pry the box open in the
immediate presence of others undermined the State's effort at the hearing to
suggest that he 	opened the box to check for a possible bomb or hair-trigger
firearm. 	In State v. Houser,59 the court rejected a claim that the possibility of theft
from the locked trunk of an impounded vehicle established the manifest necessity
needed to justify an inventory search of the trunk. 	Similarly, we reject the State's
claim, 	without 	any 	supporting 	evidence, 	that 	the 	possibility 	of 	a 	bomb 	or
dangerous firearm in the locked box established manifest necessity to search the
box. 	"Absent exigent circumstances, a legitimate inventory search only calls for
noting such an item as a sealed unit."60
The State next argues that it does not need to show manifest necessity to
search the locked box. 	It reasons that unlike the contents of a locked vehicle
trunk, an arrestee has "a diminished expectation of privacy in the clothing and
personal possessions closely associated with an arrested person." 	To support
this argument, the State cites State v. Smith,61 	where a 	police officer went
through 	each 	item of the arrestee's 	purse according to an 	inventory search
59 95 Wn.2d 143, 155-56, 622 P.2d 1218 (1980).
60 Houser, 95 Wn.2d at 158.
61 76 Wn. App. 9, 11, 15, 882 P.2d 190(1994).
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No. 70839-2-1/17
policy. 	But Smith does not support the State's 	position. 	Though the court
concluded that the inventory search of Smith's purse was valid, it did not make
any distinction 	between a search of a vehicle trunk and items found 	on the
arrestee's person. 	Instead, it found that the challenged search did not exceed
the limits of an inventory search stated 	in 	Houser. a case that adopted the
manifest necessity standard.62
Also, the State's position conflicts with our decision in State v. Dugas.63
There, this court applied Houser to an inventory search of a closed container
found in an arrestee's jacket and concluded that the search was unreasonable.64
The State offers no persuasive distinction between this case and Dugas.
We conclude that neither the search incident to arrest nor the inventory
search exception applies to the officer's initial search of VanNess's locked box.
Therefore, the officer unconstitutionally searched the locked box.
VanNess claims that Officer Edmonds obtained a search warrant based
on probable cause supported solely by this unconstitutional search of the locked
box. 	Therefore the court must suppress the resulting evidence as fruit of the
poisonous tree. We agree.
62 Smith, 76 Wn. App. at 16.
63 109 Wn. App 592, 36 P.3d 577 (2001).
64 Dugas, 109 Wn. App. at 597.
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No. 70839-2-1/18
A search warrant may be issued only upon a magistrate's determination of
probable cause.65 "Probable cause exists if the affidavit in support of the warrant
sets forth facts and circumstances sufficient to establish a reasonable inference
that the defendant is probably involved in criminal activity and that evidence of
the crime can be found at the place to be searched."66
Edmonds requested a search warrant based on the baggies and digital
scale he saw in the locked box and the heroin-like odor of vinegar coming from it.
But 	because 	Edmonds 	obtained 	this 	evidence 	as 	a 	result 	of 	an 	illegal,
warrantless search, it cannot provide the basis for a warrant.
If an 	affidavit 	contains 	facts 	sufficient 	to 	establish 	probable 	cause
independent of illegally obtained information also in the affidavit, a court will not
invalidate the warrant.67 	Here, the record does not reveal, nor does the State
assert, that Edmonds provided additional facts that would otherwise establish
probable 	cause. 	Under 	the 	exclusionary 	rule, 	the trial 	court 	should 	have
excluded the controlled substances and additional paraphernalia Edmonds found
in the locked box.
Because of our resolution of the search and seizure issue in VanNess's
favor, we need not consider VanNess's statement of additional grounds.
65 Neth, 165Wn.2dat182.
66 State v. Thein. 138 Wn.2d 133, 140, 977 P.2d 582 (1999).
67 State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990).
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No. 70839-2-1/19
CONCLUSION
Because the State does not show that the search of VanNess's locked
box satisfied any exception to the constitutional warrant requirements, we hold
that Edmonds unconstitutionally searched VanNess's locked box. 	We also hold
that the trial court 	should 	have suppressed the evidence obtained from this
search and the evidence obtained under the subsequent warrant. 	We reverse
and remand for further proceedings consistent with this opinion.
WE CONCUR:
i_j Wl&f,
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