                                                                 FILED 

                                                              APRIL 30, 2015 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                             )            No. 31587-8-111
                                                 )
                       Respondent,               )
                                                 )
                v.                               )            PUBLISHED OPINION
                                                 )
A.A)1]                                           )
                                                 )
                       Appellant.                )

      LAWRENCE-BERREY, J. -          Warrantless searches of constitutionally protected areas

are presumptively unreasonable absent proof by the State that one of the well-established

exceptions apply. In this case, a police officer detained A.A., a runaway juvenile, under

the Family Reconciliation Act, chapter 13.32A RCW, and then conducted a pat-down

search before placing him in his patrol car. The officer did not feel anything resembling a

weapon, but searched inside A.A.' s pants pockets and found methamphetamine and

marijuana. On appeal, A.A. argues that the trial court erred in denying his CrR 3.6

suppression motion because the State failed to establish that the search fell under any



       1 For   purposes of this opinion, we shall use initials for the appellant's name.
No. 31587-8-II1
State v. A.A.


exception to the warrant requirement. We agree, and reverse.

                                          FACTS

       On the morning of February 25,2013, A.A.'s mother called Yakima police to

report that her 15-year-old son, A.A., had run away from home. She told the responding

police officer, Cesar Escamilla, that she believed A.A.'s probation officer would issue a

warrant for A.A.'s arrest, and asked the officer to transport A.A. to a Crisis Residential

Center (CRC), a secure facility for juveniles, if police found him. Later that day, Officer

Escamilla found A.A. walking down an alley a few blocks north of his mother's house.

The officer stopped and detained A.A., intending to take him to the CRC. Aware that the

CRC had a policy of searching all youth before admitting them to the facility, 2 Officer

Escamilla searched A.A. near his patrol car. During the search, the officer found

methamphetamine in a coin pocket of A.A.'s pants and marijuana in another pocket. The

officer then transported A.A. to a juvenile detention center, rather than the CRC. The

State charged A.A. with two counts of unlawful possession of a controlled substance.

       A.A. moved to suppress the evidence as the product of an unlawful search. At the

CrR 3.6 hearing, Officer Escamilla testified that A.A. was "[j]ust walking down an alley"


       2A sign posted at the CRC provides: "All youth entering the [CRC] must be
thoroughly searched and patted down in front of the OHANA staff by Law Enforcement."
Clerk's Papers (CP) at 35. The officer did not follow this policy because the search

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No. 31587-8-III
State v. A.A.


and appeared "upset," but that he was not engaged in criminal activity and did not appear

dangerous to himself or others. Report of Proceedings (RP) at 12-13. He testified that

the Yakima police department policy requires police to search a passenger for weapons

prior to transport in a patrol car, but admitted that his search of A.A. was more intrusive

because the eRe does not allow narcotics. He explained: "I'm searching for any objects,

any items that-youth may have either in his pockets, hidden, anything besides clothing."

RP at 9. Officer Escamilla admitted that he did not feel anything resembling a weapon

during the pat-down search and that no eRe staff member was present.

       A.A. argued that the officer could lawfully conduct a pat-down search for weapons

prior to transporting A.A. to the eRe, but that the search into his pockets exceeded the

scope of a reasonable pat down for weapons. He argued, 'just because the eRe has a

policy regarding searches does not mean that that trumps the-my client's constitutional

rights. [1]f they want to do whatever they need to do to keep their facility safe, they can

do that. However, to require law enforcement to do that is clearly unconstitutional

because that does not fit an exception of the-the requirement to have a warrant before

searching my client's person." RP at 23. The State countered that "a second search

would happen anyway" and that "[t]he justification for the search was in existence at the


occurred before reaching the eRe and was not performed in front of OHANA staff.

                                             3
No. 31587-8-III
State v. A.A.


time respondent was taken into custody. He was going someplace secure; he needed to be

searched." RP at 28, 26.

       The trial court denied A.A.'s motion to suppress. Its written conclusions of law

provided in part, (1) a civil commitment search is not limited to patting the detained

person for weapons, (2) the pat-down search was authorized under Terry,3 (3) a civil

commitment search has the purpose of protecting both the police officer and the affected

individual, (4) it was reasonable to search A.A. knowing he was going to be transported

to the CRC where drugs and weapons are contraband and not allowed, and (5) the search

was conducted as a result of a civil detention, not as a search incident to arrest. The court

ultimately concluded that "it was reasonable to conduct the search, either at the time

[A.A.] was taken into custody or at the time of admission at the CRC." Clerk's Papers at

55.

       In a stipulated facts bench trial, the trial court found A.A. guilty as charged. A.A.

appeals the denial of his suppression motion.

                                        ANALYSIS

       The sole issue on appeal is whether the trial court erred when it concluded Officer

Escamilla's search of A.A. was reasonable under the Family Reconciliation Act (the Act),


       3 Terry v. Ohio, 392 U.S. 1,88 S. ct. 1868,20 L. Ed. 2d 889 (1968).

                                             4

No. 31587-8-111
State v. A.A.


chapter 13.32A RCW, because A.A. was going to be transported to the CRC, a secure

facility for juveniles, which requires a search ofjuveniles before admission. This

question appears to be one of first impression in this state and requires us to evaluate

what search and seizure standards apply to a civil protective custody detainee under the

Act.

       A.A. does not dispute that Officer Escamilla had the authority to detain him under

the Act or that the officer had the authority to conduct a pat-down search for weapons;

rather, he argues that the State failed to establish that the search of his pockets fell under

any of the prescribed exceptions to the search warrant requirement. A.A. focuses his

argument on the emergency exception, maintaining that it does not apply because A.A.

was not a danger to himself or others. He contends it is improper to "extend[] the

emergency situation exception to the warrant requirement to searches ofjuveniles

following civil detention pursuant to RCW 13.32A.050." Br. of Appellant at 10.

       The State counters that the search was impliedly authorized under the Act because

the purpose of the statute is to protect children who present a danger to themselves. It

contends that the "timing of the search is of no consequence" because "[A.A.] was going

to go to the crisis residential center which requires this officer to search [A.A.] before he

would be allowed to enter." Br. ofResp't at 7. The State analogizes the search to a


                                               5

No. 31587-8-III
State v. A.A.


search incident to arrest that'" can occur prior to the arrest, so long as a sufficient basis

for the arrest existed before the search commenced.'" Br. of Resp't at 9 (quoting State v.

Chavez, 138 Wn. App. 29, 33,156 P.3d 246 (2007)).

       Standard ofReview

       We review a trial court's decision on a motion to suppress for substantial evidence.

State v. Schultz, 170 Wn.2d 746, 753,248 P.3d 484 (2011). We review conclusions of

law de novo. Id. Evidence seized during an illegal search must be suppressed under the

exclusionary rule. State v. Gaines, 154 Wn.2d 711, 716-17, 116 P.3d 993 (2005).

       Fourth Amendment to the United States Constitution

       The Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington Constitution prohibit unreasonable searches and seizures. State v.

Williams, 102 Wn.2d 733,736,689 P.2d 1065 (1984). Under these provisions,

warrantless searches are "per se" unreasonable. State v. Walker, l36 Wn.2d 678,682,

965 P .2d 1079 (1998). However, a search incident to a lawful arrest is a recognized

exception to the warrant requirement. State v. Boursaw, 94 Wn. App. 629, 632, 976 P.2d

l30 (1999) (quoting State v. Smith, 119 Wn.2d 675, 678,835 P.2d 1025 (1992)). The

exception allows an officer to search an arrestee for weapons as a measure to protect the

officer or to search for evidence that may be destroyed. State v. McKenna, 91 Wn. App.


                                              6

No. 31587-8-III
State v. A.A.


554, 560-61, 958 P.2d 10 17 (1998). The community caretaking function, which allows

for limited searches when it is necessary for police officers to render emergency aid or

assistance, is also a recognized exception to the warrant requirement. State v. Thompson,

151 Wn.2d 793, 802,92 P.3d 228 (2004). These are "divorced" from a criminal

investigation. Id. The State bears the burden of establishing an exception to the warrant

requirement. Schultz, 170 Wn.2d at 754.

       Civil Protective Custody Situation

       Washington's Family Reconciliation Act authorizes a police officer to take a

juvenile into civil custody "[i]f a law enforcement agency has been contacted by the

parent of the child that the child is absent from parental custody without consent."

RCW 13.32A.050(1)(a). The Family Reconciliation Act "clearly is designed to promote

the public interest in the safety of children." State v. Kinzy, 141 Wn.2d 373,389, 5 P.3d

668 (2000). Under the Act, "[l]aw enforcement custody shall not extend beyond the

amount of time reasonably necessary to transport the child to a destination authorized by

law and to place the child at that destination." RCW 13.32A.050(2)(a). The statute does

not contain provisions specifYing how, when, or to what extent searches may be

conducted.




                                             7

No. 31587-8-III
State v. A.A.


       Relying primarily on State v. Dempsey, 88 Wn. App. 918, 947 P.2d 265 (1997), the

State argues that the search was justified under the "community caretaking" exception to

the warrant requirement. In Dempsey, a police officer detained the defendant after

receiving a call that he had threatened his parents and they feared for their safety. Id. at

920. Police observed that the defendant was paranoid, volatile, and physically aggressive.

He had to be restrained from assaulting his father. Before transporting the defendant to

Sacred Heart Medical Center for an involuntary civil commitment for a mental health

evaluation under chapter 71.05 RCW, police conducted a pat-down search for weapons

and felt a large knife in his pants pocket. A police officer reached into the pocket to

remove the knife and recognized a large bindle that contained methamphetamine.

Id. at 921.

       The defendant challenged the search, arguing that his civil detention was

pretextual because officers knew he had recently used drugs. We initially noted

that the officers properly detained Mr. Dempsey under chapter 71.05 RCW

because it was reasonable to believe that "Mr. Dempsey was a substantial and

imminent threat to himself and others." Id. at 923-24. We stated that "[a] search

incident to a civil detention is not limited by Terry considerations" because the

only purpose of a Terry search is officer safety, whereas, a civil custody search has


                                              8

No. 31587-8-111
State v. A.A.


the "primary purpose of protecting, not the officer, but the affected individual and

others who may come into contact with him while rendering aid." Id. at 924

(footnote omitted). Thus, in view of Mr. Dempsey's acutely paranoid state, this

court held that a search incident to a civil commitment detention is not limited to a

weapons pat down because the arresting officer has a duty "to identity and remove

anything with which [a defendant] might harm himself or others, including street

drugs." Id. at 924. This court concluded:

       The search here falls into the "emergency situation" exception to the
       warrant requirement. This exception permits a warrantless search to
       whatever extent is objectively reasonable to carry out the police caretaking
       function, given the circumstances reasonably perceived by the officer at the
       scene at the time. During an intervention, the officer may search for any
       dangerous instrumentality. There need be only "some reasonable basis to
       associate the emergency with the place to be searched."

Id. at 924 (citations omitted) (quoting State v. Lynd, 54 Wn. App. 18, 21, 771 P .2d

770 (1989)).

       This case is distinguishable from Dempsey. First, Washington's involuntary

treatment act (ITA), chapter 71.05 RCW, and the Family Reconciliation Act, chapter

13.32A RCW, serve different purposes and, therefore, lend themselves to different search

standards. The purpose of the ITA is to protect persons who present an imminent risk of

harm to themselves or others. RCW 71.05.153(1). Thus, the purpose ofa search


                                             9

No. 31587-8-III
State v. A.A.


impliedly authorized under the statute is the protection of the unstable individual, police

officers, or others from imminent harm. By its very language, the statute encompasses

the emergency exception, and therefore police are generally not limited to a protective

pat-down search for weapons under Terry, which is focused on the protection of the

officer. Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). Chapter

13.32A RCW-the Family Reconciliation Act-in contrast, is designed to protect

runaway children, and thus implicates different search standards, which will be discussed

below.

         Here, in contrast to Dempsey, the detainee did not pose an imminent threat of harm

to himself or others. Officer Escamilla testified that A.A. was simply walking down the

street and did not appear dangerous. In fact, the officer admitted that the search was

conducted for the purpose of finding weapons or street drugs because CRC prohibited

contraband at its facility. Thus, unlike Dempsey, the initial pat-down for weapons was

sufficient to protect the officer.

         Kinzy is helpful to our analysis. In that case, at around 10:00 p.m. on a

school night, police officers saw a young female who appeared to them to be

between 11 and 13 years old. Kinzy, 141 Wn.2d at 378. She was standing on a

public sidewalk in a high narcotics area with several others, including an older


                                               10 

No. 31587-8-III
State v. A.A.


person police believed to be associated with narcotics. ld. at 378-79. Officers

decided to approach her. As they did so, Ms. Kinzy put her head down and started

to walk away. One officer grabbed her by the arm to keep her from leaving. ld. at

380. Police patted her down for weapons and saw flecks of cocaine on her coat.

Ms. Kinzy then admitted that she had more cocaine in her bra.

       At the suppression hearing, a police officer testified that he stopped Ms.

Kinzy out of concern for her safety, not suspicion of criminal activity. Division

One of this court concluded that the initial seizure of Ms. Kinzy was valid under

the community caretaking function, the protective frisk was valid under Terry and

the plain view observation, and "seizure" of the cocaine flecks was valid under the

plain view exception. ld. at 381-82.

       Our Supreme Court reversed, noting that the community caretaking function

involves a situation of lesser urgency and searches resulting in less intrusion than the

emergency exception. ld. at 386. The court noted that "a person may encounter police

officers in situations involving not only emergency aid, but also involving a routine check

on health and safety." ld at 387. It stated that once the exception applies, "police

officers may conduct a noncriminal investigation so long as it is necessary and strictly

relevant to performance ofthe community caretakingfunction. The noncriminal


                                             11 

No. 3 I 587-8-III
State v. A.A.


investigation must end when reasons for initiating an encounter are fully dispelled."

Id. at 388 (footnote omitted) (emphasis added).

       Applying these principles to the facts of that case, the court held that the initial

preseizure encounter was reasonable under the community caretaking function exception,

but that police should have allowed Ms. Kinzy to walk away because their interest in

maintaining the safety of children did not outweigh Ms. Kinzy's privacy interest in

freedom from police intrusion. Id. at 392. The court held that once a person is seized

under the community caretaking function, "[b]alancing the interests will not necessarily

favor action by police." Id. at 394. The court concluded, "[w]hen in doubt, the balance

should be struck on the side of privacy because the policy of the Fourth Amendment is to

minimize governmental intrusion into the lives of citizens. The community caretaking

function exception should be cautiously applied because of its potential for abuse."

Id. at 394-95.

       Cases from other jurisdictions discuss search standards in the context of civil

protective detentions. In R.A.S. v. Florida, 141 So. 3d 687 (Fla. Dist. Ct. App. 2014),

police detained R.A.S., a juvenile, because he had been reported absent from school.

Id. at 689. When the police officer found R.A.S., he offered R.A.S. a ride to school,

which R.A.S. accepted. The police officer then asked R.A.S. to empty his pockets before


                                              12 

No. 31587-8-III
State v. 	A.A.


entering the patrol car. Id. R.A.S. emptied all but one pocket. The officer asked ifhe

could '" do a weapons patdown'" and R.A.S. agreed. Id. While patting a back pocket,

the officer felt a small'" squishy bulge.'" Id. He asked what the packet contained, and

R.A.S. removed a baggy containing marijuana. 	 Id.

       The court held that the search was illegal, stating "an officer may conduct a pat-

down for weapons before placing a truant in his vehicle, but he is not authorized to

conduct a full search." Id. The court noted that the detention of a truant was authorized

under Florida law, but emphasized that "truancy is not a crime, and a custodial detention

for this purpose is not an arrest." Id. Because this was not a search incident to arrest, the

court held that the officer, at most, was authorized to conduct a pat-down search for

weapons before placing R.A.S. in his patrol car. Id. The court also held that once the

officer performed the pat-down search and determined that R.A.S. was not carrying a

weapon or contraband, the officer had no legal basis to continue the search. The court

reasoned:

       [W]hen taking a truant into custody, the only concern is for officer safety­
       no crime has been committed and, accordingly, there is no need to preserve
       evidence of a crime. The deputy here knew that the "squishy object" in
       R.A.S.'s pocket was not a weapon. Therefore, he had no legal basis for
       questioning R.A.S. further about the contents of the pocket.

Id. at 690.



                                             13 

No. 3 I 587-8-III
State v. A.A.


       The Supreme Court of Colorado discussed search standards in the context of

detention under its Alcoholism and Intoxication Treatment Act, a civil statute that allows

law enforcement to take a person incapacitated by alcohol into protective custody if that

person is "'clearly dangerous to the health and safety of himself or others.'" People v.

Dandrea, 736 P.2d 1211, 1214 (Colo. 1987) (quoting COLO. REv. STAT. 25-1-310(1)). In

that case, police searched the pocket of the defendant prior to transporting him to an

alcohol detoxification facility under the act. ld. at 1212. Police were unable to determine

if the defendant possessed a weapon due to the thickness of his jacket and, therefore,

began removing the contents of his pockets. ld. at 1213. During the search, police found

a packet of heavy folded paper the size of a razor blade. ld. Officers opened the packet

and found cocaine. At the suppression hearing, the trial court ruled that the act, a civil

statute, only empowered police officers to conduct a pat-down search of the person taken

into civil custody, and that police should have quarantined the packet without any further

search of its contents. ld. The State appealed, arguing that the act should be construed to

authorize police officers to conduct as complete a search as would be permitted if the

individual was arrested on probable cause that the person committed a criminal act.

       The Colorado Supreme Court rejected the State's argument, finding the intent of

the act was to prevent harm to the detainee resulting from the detainee's intoxication, and,


                                             14 

No. 31587-8-II1
State v. A.A.


therefore, the act could not be used to justifY an arrest comparable to a criminal arrest. Id.

at 1215. The court analyzed the search under constitutional principles, stating "[t]he

constitutional test of a warrantless search ... is reduced to the question of whether the

search was reasonable under all the relevant attendant circumstances." Id at 1216. The

court then noted that the primary justification for warrantless searches incident to

custodial arrests is the preservation of evidence and the protection of arresting officers.

Noting that only the latter is at issue in civil protective custody cases, the court stated,

"[w]hile the goal of assuring officer safety is admittedly important, the legislative

emphasis on the noncriminal nature of the contact between government officials and

private citizens in civil protective custody settings requires that in such settings the

individual's privacy interest must be accorded maximum weight in determining the

reasonableness of police conduct." Id at 1217. The court suggested a "case-by-case"

evaluation, rather than a rigid formula due to the different degrees of potential danger in

any given civil protective custody detention. Id The court ultimately held:

       It would appear, therefore, that in most cases involving detention of a
       private citizen for the sole purpose of placing that person in civil protective
       custody, a pat-down search for weapons at the scene would fully satisfY the
       need to assure officer safety and the safety of the individual while
       simultaneously according sufficient weight to the detainee's status as a
       noncriminal and attendant interest in personal privacy. Thus the discovery
       of an item believed to be or to contain a weapon would in most
       circumstances require nothing more than the isolation of that item at the

                                               15 

No. 3 1587-8-III
State v. A.A.


       scene of the detention. Once the detainee's access to the item is denied, any
       further search of the item would have to be justified on some other basis.

ld. at 1218.

       In view of the principles enunciated above, we believe that a case-by-case

approach as set forth in Dandrea best balances the constitutional rights of the detainee

with safety considerations of third persons. Generally, in cases involving civil detentions

under the act, only a protective pat-down search for weapons is appropriate. However,

when police are faced with emergency situations in which the detainee poses a threat to

himself or others, a more intrusive search is justified. Dempsey, 88 Wn. App. at 924-25.

Thus, if A.A. had exhibited signs of acute mental instability and presented a risk of

imminent or substantial harm to himself or others, the search of his pockets would have

been justified.

       Under the act, a law enforcement officer is unquestionably fulfilling his or her role

as a community caretaker when he or she encounters a child runaway or a child beyond

the control of his parents. Under the act, the police have an obligation to transport the

child to the appropriate secure facility. This implies authority to conduct an initial pat-

down search for weapons before placing the child in the patrol car. However, we must be

cautious in applying the community caretaking function exception and satisfY ourselves

that the claimed function was not a pretext for an evidentiary search. Thus, in the context

                                              16 

No. 31587-8-111
State v. A.A.


of a warrantless search stemming from noncriminal conduct, the search must be limited in

scope by the circumstances of the particular encounter and "strictly" relevant to the

community caretaking function. Kinzy, 141 Wn.2d at 388.

       Here, the particular circumstances did not justifY the search of A.A.'s pockets.

Once the officer conducted the pat-down search and determined that A.A. did not have a

weapon, the search should have stopped. A.A. had not committed a crime and, therefore,

there was no need to preserve evidence of a crime. A.A. did not exhibit signs of

dangerousness to himself or others. The only concern was for officer safety.

       The State's argument that the search was justified because the eRe requires a

search ofjuveniles before admission is not persuasive nor is it relevant. Notably, the

officer did not perform this search at the eRe according to   eRC policy.   We express no

view regarding potential search issues at the CRe facility performed according to eRe

policy. Under our facts, this was a noncriminal protective custody situation, which

requires us to accord maximum weight to A.A.'s privacy interest in evaluating the

reasonableness of the search. Unless the State can establish that the search fell under an

exception to the warrant requirement, we must reverse. The State has failed to establish

an exception.




                                            17 

No. 31587-8-111
State v. A.A.


       Reversed.




                          Lawrence-Berrey, J.

WE CONCUR: 





Siddoway, C.J.




Brown, J.




                   18 

