# State v. Afana

> Washington Supreme Court · July 1, 2010 · 169 Wash. 2d 169

URL: https://www.frixlaw.com/law-library/cases/4714396

## Case

- **Full name:** The State of Washington v. Mark Joseph Afana
- **Court:** Washington Supreme Court
- **Decided:** July 1, 2010
- **Citations:** 169 Wash. 2d 169
- **Precedential status:** Published
- **Opinion:** Concurrence by Johnson
- **Judges:** Alexander, Chambers, Fairhurst, Johnson, Madsen, Owens, Sanders, Stephens
- **Cited by:** 109 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4714396

## How later opinions describe it (automated extraction)

- holding the search of the car incident to Afana's passenger's arrest invalid, where Afana had sought to suppress seized items at trial

## Opinion text

J.M. Johnson, J.
¶23 (concurring) — I concur with Justice Alexander’s majority opinion but fear that the opinion could be misconstrued as changing our view that officer and public safety concerns justify searches. I write separately to emphasize that the warrantless search of Mark Joseph Afana’s vehicle incident to the arrest of his passenger clearly would have been constitutional if the arresting officer perceived a threat to his safety. The arresting officer in this case appears to have felt secure during this arrest, *185 but officers in similar situations — investigating suspicious activity in a car at 3:30 a.m. in a rural area — may have reasonable suspicion that their or the public’s safety is at risk. Such officers can constitutionally search the cars in question. See State v. Smith, 115 Wn.2d 775, 785 , 801 P.2d 975 (1990) (officer may search for weapons in passenger compartment of vehicle if he has “ ‘reasonable suspicion that the suspect is dangerous and may gain access to a weapon in the vehicle’ ” (quoting State v. Williams, 102 Wn.2d 733, 738-39 , 689 P.2d 1065 (1984))); State v. Kennedy, 107 Wn.2d 1, 12 , 726 P.2d 445 (1986) (limited search of car permitted when necessary to ensure officer safety). The United States Supreme Court has agreed and also included the safety of persons other than the officer as a justification for searches. See Michigan v. Long, 463 U.S. 1032 , 103 S. Ct. 3469 , 77 L. Ed. 2d 1201 (1983) (search authorized if suspicion of danger to officer or others applies to any individual involved, whether or not the individual is the arrestee).
¶24 Only because the arresting officer in this case reported no suspicion or fear that either Afana or his passenger was dangerous or may have obtained weapons from the car, the majority properly found the warrantless search unconstitutional under article I, section 7 of the Washington Constitution. However, if an officer reasonably perceives a safety threat, a search is lawful under the United States and Washington Constitutions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4714396. Public record. Not legal advice.