The State of Washington, Appellant, v. Rickey F. Turner, Respondent, 114 Wash. App. 653

Seinfeld, J. The State appeals from a trial court suppression order. Rickey F. Turner cross appeals the trial court’s denial of prejudgment interest on the fines and costs he paid pursuant to an earlier judgment and sentence that this court later overturned. Finding that the State failed to carry its burden of establishing that the vehicle’s passenger compartment was within Turner’s immediate control at the time of his arrest, we affirm the trial court’s suppression order.

Further finding that the State did not waive its sovereign immunity and, thus, is not liable for prejudgment interest, we also affirm the trial court’s ruling on prejudgment interest. FACTS A deputy sheriff contacted Rickey Turner after he observed Turner urinating in a parking lot. When the deputy first approached, Turner was standing near the open driver’s side door of a pickup truck; another person was seated in the passenger seat. Turner denied that he had been urinating and became argumentative. The deputy then arrested him for indecent exposure and obstructing a public servant.

A second deputy then searched the truck’s passenger compartment and discovered a rifle. The State charged Turner with unlawful possession of a firearm and obstructing a law enforcement officer. State v. Turner, 103 Wn. App. 515, 519, 13 P.3d 234 (2000). A jury convicted Turner of the unlawful possession of a firearm charge, but we later reversed the conviction and remanded the case for retrial. Turner, 103 Wn. App. at 518-20, 526. Turner moved for reimbursement of the fines and costs he had paid under the reversed judgment and sentence and requested prejudgment interest.

The trial court ordered reimbursement of the $471.70 Turner had paid toward the judgment, but denied him the $40.26 in ir terest he requested. On retrial, Turner moved to suppress evidence of the rifle. The trial court granted the motion and dismissed the charge with prejudice. The State appeals, arguing that the deputy found the rifle in a proper search incident to Turner’s arrest. Turner cross appeals the trial court’s refusal to grant him prejudgment interest. DISCUSSION I. Search Under

article I,

section 7 of our state constitution, warrantless searches are per se unreasonable unless they fall under a specific exception to the warrant requirement. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999). Such exceptions are “limited and narrowly drawn.” Parker, 139 Wn.2d at 496; see also State v. Porter, 102 Wn. App. 327, 330, 6 P.3d 1245 (2000). The State has the burden of establishing that a warrantless search falls within an exception. Parker, 139 Wn.2d at 496; Porter, 102 Wn. App. at 330.

Under the search incident to arrest exception to the warrant requirement, officers may search a suspect’s person and the area within that person’s immediate control at the time of the arrest even in the absence of exigent circumstances. Porter, 102 Wn. App. at 330-31, 333-34. This permission extends to the passenger compartment of the suspect’s vehicle if the compartment was within the suspect’s immediate control at the time of or immediately prior “to the suspect’s being arrested, handcuffed, and placed in a patrol car . . . .” State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986).

To invoke this exception, the State must prove both close physical and close temporal proximity. See, e.g., State v. Johnston, 107 Wn. App. 280, 28 P.3d 775 (2001), review denied, 145 Wn.2d 1021 (2002). Courts have upheld vehicle searches where, at the time of arrest, the suspect was (1) standing within the door to the passenger compartment, (2) leaning into the vehicle, or (3) within several of feet of the vehicle. See Stroud, 106 Wn.2d at 145, 153 (search valid where one suspect was standing in the “swing of the open passenger door” and the other was only a couple of feet away from the vehicle); State v.

Bradley, 105 Wn. App. 30, 33, 18 P.3d 602, 27 P.3d 613 (2001) (search valid where suspect leaned into vehicle, then walked 10 to 12 feet away from car leaving the door “somewhat ajar”).

But the required physical and temporal proximity have been lacking where (1) the suspect has been removed entirely from the scene, (2) the arrest occurred inside a building some distance away from the vehicle, (3) the suspect lawfully parked and locked the vehicle before the police contact, (4) the suspect was away from the car for an unspecified period and at the time of the arrest the officers were between the suspect and the closed car, or (5) the suspect had walked a significant distance away from the vehicle. Johnston, 107 Wn.

App. at 288 (car search invalid where arrest occurred after suspects left car, went into store for unspecified time, when they returned the officers were between closed car and suspects, and proximity was unspecified); State v. Wheless, 103 Wn. App. 749, 14 P.3d 184 (2000) (car search invalid where arrest took place inside tavern); Porter, 102 Wn. App. at 333-34 (car search invalid when suspect was approximately 300 feet from vehicle when arrested); State v. Perea, 85 Wn. App. 339, 932 P.2d 1258 (1997) (car search invalid where suspect lawfully exited and locked his car before police contact); State v.

Boyce, 52 Wn. App. 274, 758 P.2d 1017 (1988) (search not valid where suspect had been entirely removed from the scene). In this case, neither the findings of fact nor the evidence indicate the distance between Turner and the truck; both merely use the relative word “near.” Given that the truck door was open, the driver seat was vacant, and another person was sitting in the passenger seat, it was reasonable for the arresting deputy to assume that Turner was the vehicle’s driver.

But absent evidence of Turner’s proximity to the vehicle, there was no basis for the trial court or this court to conclude that the passenger compartment was within Turner’s immediate control when the deputy approached him. The State argues that the trial court used the wrong legal standard. It contends that the court’s reference in its findings to the deputy’s failure to observe Turner inside the vehicle and to the absence of evidence that he attempted to reach into or enter it indicates that the court erroneously relied on these facts.

We agree with the State that proof of immediate control does not require evidence that the defendant was in the vehicle or attempting to enter it. But the trial court’s descriptive findings do not establish that the court required proof of these facts to establish immediate control. Here, unlike in Stroud, the record is silent as to the distance between Turner and the vehicle. In the absence of such evidence, the trial court could not find that the vehicle was under Turner’s immediate control, a finding necessary to rely on the search of a vehicle incident to arrest exception.

Because the State has failed to meet its burden of establishing this fact, the trial court did not err in suppressing evidence of the rifle. II. Prejudgment Interest Relying on RAP 12.8 and State v. A.N.W. Seed Corp., 116 Wn.2d 39, 802 P.2d 1353 (1991), Turner argues that the trial court erred when it refused to grant him prejudgment interest on the portion of the judgment he paid before we vacated it. The State argues that it is not liable for prejudgment interest because it has not waived sovereign immunity. We agree with the State.

As a matter of sovereign immunity, “ ‘the state cannot, without its consent, be held to interest on its debts.’ ” Architectural Woods, Inc. v. State, 92 Wn.2d 521, 524, 598 P.2d 1372 (1979) (quoting Spier v. Dep’t of Labor & Indus., 176 Wash. 374, 376-77, 29 P.2d 679 (1934)). See also State v. Thiessen, 88 Wn. App. 827, 829, 946 P.2d 1207 (1997). The State may waive sovereign immunity by contract in an individual situation. Bond v. State, 70 Wn.2d 746, 748, 425 P.2d 10 (1967). But only the legislature can adopt a blanket waiver, which it has not done here. Architectural Woods, 92 Wn.2d at 526.

RAP 12.8, which the Supreme Court adopted, governs the effect of an appellate court’s reversal on intervening rights; it states in part: If a party has voluntarily or involuntarily partially or wholly satisfied a trial court decision which is modified by the appellate court, the trial court shall enter orders and authorize the issuance of process appropriate to restore to the party any property taken from that party, the value of the property, or in appropriate circumstances, provide restitution.

Nothing in RAP 12.8 indicates that the State waived sovereign immunity or otherwise agreed to be liable for prejudgment interest; it merely authorizes the appellate court to restore the party’s property or provide that party with the value of the property taken. Further, as the legislature did not adopt this court rule, the rule cannot constitute a blanket state waiver. See Architectural Woods, 92 Wn.2d at 526. Nor is Turner’s reliance on A.N.W. Seed persuasive. A.N.W.

Seed dealt with the rights of a judgment debtor to recover proceeds that the State acquired in a sale of property to satisfy a judgment in a consumer protection action; the judgment was subsequently vacated. 116 Wn.2d at 43-49. Although the court held that the judgment debtor was entitled to the actual sale price of the property plus interest, it did so without discussing the interest portion of the award, and the State never raised the issue of sovereign immunity.

Turner also suggests that he is entitled to prejudgment interest under RCW 4.56.115 because the reimbursement of the judgment here is “akin to a remedy in tort.” Reply Br. of Resp’t/Cross Appellant at 2. But RCW 4.56.115 provides for postjudgment interest in tort judgments against the State, it does not provide for prejudgment interest. Norris v. State, 46 Wn. App. 822, 825, 733 P.2d 231 (1987). Finally, Turner’s attempt to distinguish the cases relating to the self defense reimbursement statute, RCW 9A.16.110, is unpersuasive.

The sovereign immunity rule applies regardless of the context and this decision does not rest on the language of RCW 9A.16.110. Because Turner has not shown that the State waived sovereign immunity and agreed to pay prejudgment interest, the trial court did not err when it denied his request. We affirm. Houghton, J., concurs. Turner has not challenged the trial court’s findings of fact; accordingly, these fai is are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

Finding of fact 3 states: “[The officer] observed the defendant, Rickey Turner, standing in the parking lot near the driver’s side of the pickup with the driver’s door remaining open.” Clerk’s Papers (CP) at 23. Finding of fact 5 states: “[The officer] pulled into the parking lot, and contacted Turner. Turner was still standing in the parking lot, outside and near the vehicle, and the driver’s door was still open.” CP at 23. Turner concedes that the State’s failure to raise sovereign immunity below does not prevent it from raising the issue here. See State v. Lee, 96 Wn. App. 336, 345 n.10, 979 P.2d 458 (1999).