Airway Heights search ruled illegal

A search of a man by two Airway Heights police officers was unconstitutional and a Spokane judge was correct in tossing out stolen property charges against him, an appeals court has ruled.

The Washington Court of Appeals in Spokane said this week that Spokane County Superior Court Judge Ellen Kalama Clark was correct in dismissing second-degree possession of stolen property charges against Curtis N. Beito because of the illegal 2006 search.

Airway Heights police Officer Paul Brasch and reserve Officer Robert Schmitter noticed Beito sitting in the front passenger seat of a car outside a convenience store. Beito told the officer he was waiting for a friend, but the police grew suspicious when they saw several suitcases and bags in the back of the car.

Beito didn’t have identification with him, and a police database search run by the officers showed he had a warrant for his arrest.

In a search, the officers found a stolen gas card in Beito’s pants pocket, according to the court opinion.

The Spokane County prosecutor’s office appealed the judge’s dismissal of the charges, saying Clark had abused her discretion.

But the three-judge appeals court panel disagreed, saying the police officers’ actions – including standing by the car’s passenger door and not allowing Beito or the driver to leave – amounted to an illegal seizure.

The seizure “violated his constitutional rights” and all evidence obtained as a result of an unlawful seizure is inadmissible, the court said.

The judges noted that the Washington state Constitution says no person “shall be disturbed in his private affairs … without authority of law” – greater protection of a person’s right to privacy than offered by the U.S. Constitution’s Fourth Amendment, which guards against unreasonable search and seizure.

Beito represented himself in the appeal.

It’s not the only time Clark has tossed out evidence from an illegal police search in Airway Heights. In March she dismissed drug charges against Kevin A. Herres after surveillance videotape from Northern Quest Casino contradicted a sworn statement by Airway Heights Officer Thomas Gravelle.

Gravelle and another officer said Herres had exited his vehicle in the casino parking lot before he was arrested on suspicion of drug possession. But casino video obtained by defense attorney David Partovi showed Herres sitting in the backseat and not stepping out of the car.

Ordering a passenger to enter or exit a vehicle is considered a seizure in Washington, and the state must prove the search was voluntary. Clark dismissed the charges.