Opinion
No. 33672-3-II.
September 11, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 03-1-00133-1, James E. Warme, J., entered August 12, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Department of Corrections (DOC) officers executed a search of Terry Winterstein's residence, where Bror Soderlind was renting a room. Based on evidence found in the search, Soderlind pleaded guilty to one count of manufacturing methamphetamine. However, evidence discovered during Winterstein's trial indicated that DOC had notice that Winterstein, prior to the search, had changed his address to a travel trailer on the same property. Soderlind filed a CrR 7.8 motion for relief from judgment, arguing that DOC did not have permission to search the home as it was no longer Winterstein's official residence. The trial court denied the motion. We hold that the officers were justified in searching what they believed to be Winterstein's home and that they were invited in when they arrived, but, as they knew there were other tenants in the home, they should have limited their search to common areas and Winterstein's bedroom. However, the record shows that evidence in Soderlind's room was in plain view from the hallway; therefore, the search was permissible under the plain view exception to the warrant requirement. We affirm.
FACTS
On February 5, 2003, Community Corrections Officer (CCO) Rongen received information from Clark-Skamania Drug Task Force officers that Winterstein, who was under supervision after a gross misdemeanor conviction, was potentially manufacturing methamphetamine at his residence. Based on this information, Winterstein's failure to report as required, and a prior positive test for methamphetamine, CCO Rongen planned to search Winterstein's residence the next day.
Winterstein pleaded guilty to malicious mischief in September 2002. He was imprisoned for less than one year and began reporting for community supervision in October 2002.
CCO Rongen previously met with Winterstein at his residence, 646 Englert Road. At that time, Winterstein gave him a tour of the mobile home. There were three bedrooms in the mobile home, and Winterstein informed CCO Rongen that he could not go into the other bedrooms because they were not his. CCO Rongen also met Winterstein's girlfriend, Sunshine O'Connor, who was living with him at the time.
When officers arrived on February 6, they noticed several structures on the property, including a mobile home (646 Englert Road), a motor home (646½Englert Road), and a travel trailer. The numbers "646" and "646½" were spray-painted on the front of the mobile home and the motor home, respectively. Report of Proceedings (RP) (Jun. 28, 2005) at 142-43.
CCO Rongen, along with officers from DOC, the Clark-Skamania Drug Task Force, and Detective Watson (from the Cowlitz-Wahkiakum Narcotics Task Force), initially approached the mobile home. CCO Rongen testified that when he arrived at the mobile home, the door was open. He stated that he announced himself as from DOC, and a male voice said, "Yeah, come on in." RP (Jun. 28, 2005) at 28.
There were four people at the mobile home when CCO Rongen entered — Bror Soderlind, Sunshine O'Connor, and another man and woman. Winterstein was not present. CCO Rongen collected these people in the living room and then went back down the hallway. He testified that he did not enter the other rooms, but from the hallway, he saw a scale and a substance he believed to be red phosphorous in one of the bedrooms (later identified as Soderlind's). He then alerted the drug task force officers that there may be a methamphetamine lab. At that time, Detective Watson advised CCO Rongen to stop searching.
From Soderlind's bedroom doorway, Detective Watson could see red phosphorous, blister packs of Sudafed, a white powder substance, and a scale. Detective Watson looked through the house to see if there was any cause for immediate concern. He then removed everyone from the house and secured the scene until a search warrant could be obtained.
After obtaining a search warrant, officers from the two narcotics task forces searched all structures on the property and discovered an active methamphetamine manufacturing lab in the travel trailer. The officers also searched the motor home, but both Detective Hess and Detective Watson testified that it did not appear that anyone was living in it. Based on evidence recovered from the search, Soderlind was charged with possession and the manufacture of methamphetamine.
Detective Hess testified that it looked like the motor home was being used for storage; Detective Watson agreed and stated that "it was filled" with boxes; the boxes blocked the pathway from one end of the motor home to the other. RP (Jun. 28, 2005) at 140.
Soderlind filed a motion to suppress evidence from the search, asserting that because Winterstein had informed his attorneys that he changed his address to 646½ Englert Road at a DOC kiosk several weeks prior to the search, CCO Rongen illegally entered the residence at 646 Englert Road. According to Soderlind, CCO Rongen no longer had a right to enter 646 Englert Road because it was Winterstein's prior, not current, residence.
Despite Winterstein's claims that he changed his address, CCO Rongen informed Soderlind's attorney that Winterstein had not done so until February 6, 2003 (the same day as the search). Based on this information, Soderlind's attorney abandoned the suppression motion and recommended that Soderlind plead guilty.
Soderlind pleaded guilty to one count of manufacturing methamphetamine on July 3, 2003 (the possession charge was dismissed). Soderlind was sentenced to 40 months' imprisonment and 9-12 months' community custody.
Nearly a year and a half later, in January 2005, during Winterstein's trial, a box of miscellaneous documents seized during the search was entered into evidence. The documents were not separately examined until after closing arguments, when the prosecutor and Winterstein's attorney scrutinized each one in order to remove any prejudicial documents. At this time, Winterstein's attorney discovered a DOC billing statement addressed to Winterstein at 646½ Englert Road. The billing statement was dated January 13, 2003 (before the search).
Soderlind filed a motion for relief from judgment under CrR 7.8(b), requesting that the trial court vacate his sentence, allow him to withdraw his plea, and grant his original motion to suppress the evidence. He argued that the State's misrepresentation regarding the date Winterstein changed his address denied him the opportunity to argue a successful motion to suppress, and that the newly discovered evidence — the DOC billing statement — would have changed Soderlind's plea.
All parties agreed that Winterstein and Soderlind would relitigate in the form of a suppression motion hearing. That hearing was held on June 28, 2005. The trial court did not enter findings of fact and conclusions of law, but it orally found that DOC had notice of Winterstein's address change before January 13, 2003. The court then stated:
The Department had notice of his attempted change of address. Mr. Rongen had notice of his last approved, apparently, address. And this is a key finding here. 646½ was not his address, he lived at 646. The change of address to 646½ was a ruse.
Now, I say that because when Mr. Rongen went to the house in February, Mr. Winterstein's room was the same as it had been when he'd been there in January. When he asked the girlfriend if Mr. Winterstein still lived in the house, the girlfriend said "yes." Mr. Soderlind testified, he said Mr. Winterstein still lived in the house, and the detective said nobody was living in the motor home. It was a ruse.
So, when the officer goes there, acting in good faith, to his actual address without knowledge that the Defendant has attempted to change his address by way of a ruse, is he bound by it? I don't think so. I don't think he's bound by the ruse. The only point, as far as I can tell from — the only inference I can get from this is that he did this so they wouldn't come and search his house, they'd go search in the motor home that was next door that nobody was living in.
RP (Jun. 28, 2005) at 182-83.
The trial court denied Soderlind's suppression motion and CrR 7.8 motion for a new trial. This appeal followed.
The trial court also expressed concern about Soderlind's standing to challenge the warrantless search with a CrR 7.8 motion after he had entered a guilty plea. CrR 7.8 motions are a form of collateral attack, similar to Personal Restraint Petitions (PRPs), and are subject to the same limitations and procedures, when appropriate. State v. Robinson, 153 Wn.2d 689, 695-96, 107 P.3d 90 (2005). In Robinson, the Washington Supreme Court reviewed the trial court's denial of a CrR 7.8 motion where the defendant entered Alford pleas to two separate crimes. Robinson, 153 Wn.2d at 691. Therefore, Soderlind's guilty plea should not limit this court's review of his CrR 7.8 motion.
ANALYSIS
I. Failure to Enter Written Findings of Fact and Conclusions of Law
All parties agreed to treat Soderlind's CrR 7.8 motion as a suppression motion. Written findings of fact and conclusions of law are required after a hearing on a suppression motion. CrR 3.6(b). Although failure to submit written findings and conclusions is error, such error is harmless where the trial court's oral findings are sufficient to permit appellate review. State v. Riley, 69 Wn. App. 349, 352-53, 848 P.2d 1288 (1993).
Here, the trial court's reasons justifying its ruling are somewhat oblique. It agreed that DOC had notice of Winterstein's new address, but it used information obtained during the search — that Winterstein's bedroom was in the same condition as before, and his girlfriend's statement that he still lived in the mobile home — to justify its denial of the suppression motion. Moreover, it appears that the trial court may have used the officers' "good faith" as an excuse for the warrantless search, even though Washington courts have specifically rejected a "good faith" defense. RP (Jun. 28, 2005) at 183; State v. Morse, 156 Wn.2d 1, 9-10, 123 P.3d 832 (2005).
Regardless, the final conclusions of the trial court are clear: (1) DOC had notice of the address change, and (2) CCO Rongen was justified in ignoring this information and searching Winterstein's prior address because Winterstein's motive for changing his address was a ruse. These conclusions are sufficient for our review.
II. Denial of CrR 7.8 Motion
CrR 7.8 allows the trial court to vacate or amend a final judgment on certain grounds, including mistake, excusable neglect, newly discovered evidence, and fraud. We review a trial court's decision on a CrR 7.8 motion for abuse of discretion. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 879-80, 123 P.3d 456 (2005) (citing State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996)). A court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). "[A] much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying a new trial." State v. Brent, 30 Wn.2d 286, 290, 191 P.2d 682 (1948).
Here, however, neither party claims that the trial court abused its discretion in denying Soderlind's CrR 7.8 motion. The parties agreed that Soderlind's CrR 7.8 motion would be treated as a suppression motion, and they made their appellate arguments accordingly.
Indeed, it does not appear that the trial court abused its discretion in denying Soderlind's CrR 7.8 motion. When reviewing whether newly discovered evidence warrants relief in the context of a post-judgment motion to withdraw a guilty plea, Washington courts apply the same standard as for a motion for a new trial. State v. D.T.M., 78 Wn. App. 216, 219, 896 P.2d 108 (1995). The moving party must demonstrate that "the evidence (1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). A court may deny the motion in the absence of any one of these factors. Macon, 128 Wn.2d at 800.
Here, the trial court apparently believed that the evidence would not change the result of the trial, as evidenced by its denial of the suppression motion. Because one of the above factors was lacking, it was not an abuse of discretion to deny the CrR 7.8 motion.
III. Warrantless Search
Soderlind argues that the trial court erred when it concluded that CCO Rongen was entitled to search the 646 Englert Road residence despite Winterstein's prior address change because (1) it relied entirely on information obtained after CCO Rongen's entry into the residence, and (2) Washington does not recognize a good faith exception to the exclusionary rule. We review the trial court's conclusions of law de novo. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
Warrantless searches of constitutionally protected areas are presumed unreasonable absent proof that one of the well-established exceptions applies. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). Exceptions to the warrant requirement are to be "jealously and carefully drawn." State v. Hendrickson, 129 Wn.2d 61, 72, 917 P.2d 563 (1996) (quoting State v. Bradley, 105 Wn.2d 898, 902, 719 P.2d 546 (1986)). The State bears the burden of establishing an exception to the warrant requirement. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006).
Washington does not require probable cause for a search when a CCO has legitimate need to enter a probationer or parolee's home on a matter related to supervision. In such an instance, the CCO or officers aiding the CCO may enter a probationer or parolee's house, without a warrant, if the search is reasonable and the officer has a well-founded suspicion that a violation has occurred. State v. Massey, 81 Wn. App. 198, 200-01, 913 P.2d 424 (1996); See also State v. Campbell, 103 Wn.2d 1, 22-23, 691 P.2d 929 (1984); State v. Simms, 10 Wn. App. 75, 86, 516 P.2d 1088 (1973). However, this diminution of Fourth Amendment protection can only be justified to the extent actually necessitated by the legitimate demands of the parole process operation. Simms, 10 Wn. App. at 86.
While probationers have a diminished expectation of privacy, it is limited to searches of the "parolee, his home, and his effects." Hocker v. Woody, 95 Wn.2d 822, 826, 631 P.2d 372 (1981) (quoting Simms, 10 Wn. App. at 81); See State v. Coahran, 27 Wn. App. 664, 666-67, 620 P.2d 116 (1980). Therefore, Winterstein had a diminished expectation of privacy due to his probation status, but Soderlind did not. Soderlind was owed the full protections of the Fourth Amendment, and he was fully entitled to an expectation of privacy within his home.
In this case, Soderlind was present in his home when officers arrived, searching for someone else. Despite his presence, the officers did not ask for consent to search the premises in general or his room specifically. Even though the officers were justified in searching 646 Englert Road despite Winterstein's alleged ruse, this justification did not extend to rooms in the home that CCO Rongen knew Winterstein did not occupy. The search of the home should have been limited to common areas and those areas known to be occupied by Winterstein.
In State v. Winterstein, No. 339811-II, we held that the warrantless search of Winterstein's mobile home (646 Englert Road) was valid because (1) the officers had a well-founded suspicion that Winterstein had violated the conditions of his supervision; and (2) specific and articulable facts supported the officers' belief that Winterstein actually resided at 646 Englert Road, and not in the travel trailer labeled 646½ Englert Road.
However, the record shows that both CCO Rongen and Detective Watson, before obtaining the search warrant, were able to see drug paraphernalia in Soderlind's bedroom while they were standing in the hallway. "Plain view" is another exception to the warrant requirement — where the officer had prior justification for the intrusion and immediately recognized what was found as incriminating evidence, the lack of a warrant does not necessitate suppression of the evidence. State v. O'Neill, 148 Wn.2d 564, 583, 62 P.3d 489 (2003). Here, both CCO Rongen and Detective Watson had prior justification for entering the mobile home: their belief that Winterstein still lived there was based on specific and articulable facts, and they had a reasonable suspicion that he was violating his community supervision conditions. When CCO Rongen announced his presence, he was invited in. Both officers recognized the paraphernalia in Soderlind's bedroom as evidence. Therefore, the warrantless search of Soderlind's bedroom was valid under the plain view exception, and we affirm.
Because we find that the search was valid under the plain view exception, we need not reach either the State's assignments of error or its argument in favor of adopting a good faith exception to the warrant requirement.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J., QUINN-BRINTNALL, J. concur.