State high court weighs police search

OLYMPIA – When a drug task force rolled up to Bee Xiong’s home in 2004, they handcuffed him and patted him down for weapons. In his pocket, they found a pipe that led to a drug charge.

Now, in a case that goes to the heart of the tension between officer safety and constitutional rights, the Spokane County man wants Washington’s highest court to throw out the case. Police had no right to search Xiong, his lawyer told the Washington state Supreme Court this week, because he was no threat. He wasn’t even the right person. The warrant police carried was for his brother.

“This is a person who had every right to refuse these officers’ intrusion into his private affairs,” attorney Eric Broman told the nine justices Thursday.

As usual, no ruling is expected for months. But in a rare coincidence, the high court just hours earlier tossed out another man’s drug conviction on strikingly similar grounds. The justices ruled unanimously that officer-safety frisks – like the one that led them to find Xiong’s pipe – are “a narrow exception to the rule that searches require warrants.”

“The courts must be jealous guardians of the exception,” wrote Justice Jim Johnson, “in order to protect the rights of citizens.”

In Xiong’s case, local and federal agents with an arrest warrant for Kheng Xiong went looking for him on Sept. 14, 2004. They carried a small photo.

At the home, they found his younger brother, Bee Xiong. They handcuffed him as he – pointing to his “B” tattoo – protested that he wasn’t the right person. Trying to sort things out, the officers searched for another photo on their computer.

Meanwhile, a federal agent noticed a bulge in Xiong’s pocket. It was a hard, cylindrical object. Xiong pulled back, saying he didn’t have any weapons and didn’t want to be searched.

After some discussion, police removed it from his pocket anyway. It was a pipe with drug residue. He was arrested and charged with possession of methamphetamine.

But in court in Spokane, Xiong’s lawyer successfully argued that the search was improper, which prevented the drugs and pipe from being used as evidence and halted the trial. But prosecutors appealed, and the appeals court ruled the evidence was fair game, which set up this week’s face-off in the state’s highest court.

Under a landmark 1968 case, Terry v. Ohio, police have long been allowed to make a reasonable search for weapons with no warrant. Washington’s state constitution is more restrictive, requiring that police also have a reasonable safety concern.

Although Xiong was handcuffed, it was reasonable for officers to be leery of the unexplained large item in his pocket, argued Mark Lindsey, with the Spokane County prosecutor’s office. Even handcuffed people can wriggle around and reach a weapon, he said. And Xiong’s jerking away from the officer made police uneasy.

It shouldn’t have, Broman countered. Xiong was handcuffed and surrounded by five armed officers. There’s no indication that he said anything threatening. Police had no reasonable reason to search Xiong, Broman told the court.

“Pulling away is not going for a weapon,” he said.

Broman also suggested that the race of the two brothers played a role in how police treated Xiong. “What leaks through this record are that these were two Asian guys in Spokane, so it’s OK,” he said.

Justice Barbara Madsen bristled at that, calling it “a little unfair” to imply that “the police are so racist they just grab the first Asian guys they find.”

Lindsey maintains that the search only happened the way it did because the police were trying to make sure they had the right person. Instead of simply arresting Xiong and sorting things out later, he said, the police stood around for 10 minutes trying to ascertain his real identity. It’s common for suspects to claim they’re someone else, he said, and the officers apparently didn’t know the man they were after had a brother.

The boys’ mother eventually arrived and identified Xiong. But during the wait, police had noticed the bulge and found the pipe.

“If Mrs. Xiong had turned up sooner,” Lindsey said, “they would have walked away.”

Thursday’s case closely parallels one that the Supreme Court ruled on just hours earlier.

In 2005, a youth named Michael Setterstrom went to a state office near Olympia to apply for benefits. He was “nervous and fidgety” and a friend fell asleep in the lobby while he filled out the form. Someone called police.

Convinced that Setterstrom was high on methamphetamine, a Tumwater police officer patted him down for weapons. Nothing felt like a gun, but the lieutenant ended up emptying Setterstrom’s pockets anyway. In them: a small baggie containing white powder. The officer set the baggie on a bench and arrested Setterstrom.

“What happened next was, we assume, unusual,” Justice Jim Johnson wrote. “Setterstrom dropped to his knees, grabbed the baggie and swallowed it.”

Lt. Stevens tried unsuccessfully to make him spit it out. “For obvious reasons,” Johnson reported, “police never recovered the baggie.”

Setterstrom was arrested. In his backpack, police found a small, locked safe. When they got a search warrant and opened it, they found a baggie of meth, a needle, a pipe, and scales. Setterstrom was charged with drug possession and sentenced to six months in jail.

But on Thursday, the court ruled that the initial search wasn’t justified. Setterstrom presented no reasonable danger, the justices decided. He wasn’t threatening. He wasn’t even standing up.

Since the search of his pockets led to the search of the backpack, the court ruled the second baggie was inadmissible. The justices reversed Setterstrom’s conviction.