WALLA WALLA -- Criminal charges against two defendants accused of possessing guns stolen in a burglary at the Walla Walla Worm Ranch in December have been dismissed.
Carma R. Smith, 34, of 212 N. Roosevelt St., No. 13, and Pastor Tapia-Nunez, 23, of 125 S.W. 13th St., College Place, had been charged with possessing six stolen pistols and an amount of suspected methamphetamine in a vehicle Dec. 23. Smith, who has a felony history, also was accused of unlawfully having the weapons.
But all of the charges have been dropped because the Prosecuting Attorney's Office has decided not to appeal a decision last month by Superior Court Judge Donald W. Schacht to suppress evidence in the case. Schacht determined a police search of a vehicle leading to discovery of the items violated the defendants' rights to privacy under the state constitution.
Schacht signed the dismissal order for Smith on Friday and for Tapia-Nunez on Tuesday afternoon.
Smith's vehicle was pulled over in the area of North Sixth and Rees avenues about 7:30 p.m. Dec. 23 after Walla Walla police Officer Ignacio Colin noticed the rear license plate was not illuminated. Officer Gunner Fulmer and his police dog then arrived at the scene, asked Smith and passenger Tapia-Nunez to exit the vehicle, patted them down for weapons and deployed the dog to sniff the exterior of the car.
The dog alerted to the presence of drugs, which led police to obtain a search warrant. Inside the vehicle, officials found suspected methamphetamine, in addition to seven handguns and a rifle. Six of the pistols were confirmed as being among 25 guns that had been stolen in the burglary discovered Dec. 15 at the Walla Walla Worm Ranch, 1186 Wallula Ave.
The defendants had been released before the car was searched, but were arrested the following month.
Defense attorneys William McCool and Gail Siemers claimed the search was an unlawful, unconstitutional violation of privacy, and Schacht agreed.
In a letter filed May 11, Schacht ruled that the initial stop for the minor traffic infraction was justified, but Colin had no suspicion of other illegal activities. Therefore, Fulmer's decision to remove the defendants from the car, pat them down and control them while the dog conducted a sniff search wasn't justified or reasonable for the minor traffic infraction.
Schacht ordered the evidence connected to the search suppressed. Therefore, Deputy Prosecuting Attorney Joe
Golden said in an interview Tuesday, he can't continue with the case, and he and Prosecuting Attorney Jim Nagle have decided not to appeal to a higher court.
"Our problem is the facts of this case are not that great to appeal it and we don't want to make bad law," Golden said. He explained that he believes the primary problem occurred with the seizure of the defendants by removing them from the car. He believes under certain circumstances, dog sniffs are perfectly appropriate and lawful, and doesn't want a higher court to ban them altogether based on this case.
Fulmer had testified at a hearing that he routinely deploys his dog to sniff cars at traffic stops. Although Schacht didn't specifically rule on the legality of the K-9 search, police Chief Chuck Fulton said in an interview Tuesday that officers treat each situation on a case-by-case basis. Fulton said they will continue to fine-tune their actions based on the latest court decisions and on discussions with other law enforcement agencies and the prosecuting attorney's office.
"Our job is to protect the rights of people, so we don't want to infringe on those rights. But we still want to provide safety and security for (everyone else), too," Fulton said.
McCool, who represented Smith, said in an interview he believes strongly that dismissal of the cases is appropriate. "Our position is a person in this community should not have to be concerned that anytime he or she is stopped for something minor, that they're going to immediately be subjected to a dog sniff around their vehicle and/or a search for weapons."
Siemers said her client, Tapia-Nunez, always maintained his innocence. She added she's delighted at dismissal of the case because the search went far beyond what the law allows.
"I thought it was the only accurate thing that should happen," Siemers said.
Smith had been on house arrest, while Tapia-Nunez was jailed pending the outcome of his case. Tapia-Nunez now faces deportation to Mexico because he is not in this country legally, according to Siemers.