WALLA WALLA -- A Superior Court judge has ruled that a police search resulting in discovery of six guns stolen in a burglary at the Walla Walla Worm Ranch in December was unlawful and violated the two defendants' constitutional right to privacy.
Carma R. Smith, 34, of 212 N. Roosevelt St., No. 13, and Pastor Tapia-Nunez, 23, of 125 S.W. 13th St., College Place, are charged with possessing the stolen pistols and an amount of suspected methamphetamine in a vehicle Dec. 23.
But in a written ruling filed in court this morning, Judge Donald W. Schacht granted a defense request to suppress any evidence, deciding that a seizure and search resulting in the arrests of Smith and Tapia-Nunez were unreasonable under the circumstances.
Deputy Prosecuting Attorney Joe Golden said this morning the charges against the defendants will be dismissed unless he decides to appeal Schacht's ruling to the state Court of Appeals in Spokane. "We can't proceed with the case unless we have those guns," Golden said.
The charges stemmed from a traffic stop in the area of North Sixth and Rees avenues about 7:30 p.m. Dec. 23. After Walla Walla police Officer Ignacio Colin pulled over the Nissan Altima driven by Smith because the rear license plate wasn't illuminated, Officer Gunner Fulmer -- handler for the city's drug dog, Rev -- arrived at the scene.
While Colin was in his patrol car writing Smith a citation for no proof of insurance, Fulmer approached Smith's car and after a few minutes, asked if he could search her vehicle. She denied permission, so Fulmer asked her and passenger Tapia-Nunez to get out so Rev could sniff around it. Smith and Tapia-Nunez were searched for weapons. A folding utility knife was found on Tapia-Nunez.
Fulmer said at a recent court hearing he decided to deploy his dog partly because Smith had appeared nervous, Tapia-Nunez was staring straight ahead and he could see several air fresheners in the vehicle.
Rev alerted to the presence of drugs in the car, the vehicle was seized, and Smith and Tapia-Nunez were released while a search warrant was obtained.
The subsequent search uncovered seven handguns and a rifle in the car. One of the pistols was fully loaded and located between the console and front passenger seat, officials said.
Six of the pistols were confirmed as being among 25 guns that had been stolen in the burglary discovered Dec. 15 at the Worm Ranch, 1186 Wallula Ave. The defendants were taken into custody the following month after arrest warrants were issued.
Fulmer testified at the recent court hearing that he routinely deploys Rev to sniff vehicles after traffic stops in the city. But Smith's lawyer, William McCool, and Gail Siemers, attorney for Tapia-Nunez, argued the practice in this case was an unlawful, unconstitutional violation of privacy. Fulmer took advantage of a routine stop to use his dog to sniff -- in effect, to search -- the vehicle without probable cause or a warrant, McCool said.
Golden argued at the hearing that the stop was legitimate because the license plate light was out and directing Rev to sniff the car, leading to acquisition of a search warrant, was legal and reasonable.
But Schacht disagreed.
In his decision, he wrote that Colin's initial stop was justified, but pointed out that Colin didn't ask for Fulmer's assistance or call for him to help in the stop, nor was Fulmer sent to the scene by dispatchers.
Schacht ruled that Fulmer's request of Smith and Tapia-Nunez to step out of the vehicle amounted to an unjustified seizure.
He wrote: "(It) was not warranted based upon the license plate light investigation, as Officer Colin had no suspicion of other illegal activities as he prepared to write the citation. Officer Fulmer having just arrived on the scene also had no particularized suspicions of other illegal activities. The State has failed to point to any specific and articulable facts justifying the removal of the Defendants from the vehicle and the search for weapons."
Schacht also wrote that the actions "went beyond the intrusions necessary for this minor traffic infraction." But Schacht didn't express an opinion concerning the legality of the K-9 search.
In reaction to Schacht's ruling, Golden said this morning he understands the ruling. However, "I think (the officers) did good police work," he said. "But in a way, they're being penalized for it."
Smith also is charged with unlawfully having the firearms because she was convicted of a felony in 2002 for possessing more than 40 grams of marijuana.
She has been on house arrest, while Tapia-Nunez has been jailed pending the outcome of the case.
Terry McConn can be reached at firstname.lastname@example.org or 526-8319.