Opinion
No. 22189-0-III
Filed: September 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-00496-1. Judgment or order under review. Date filed: 06/19/2003. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), Cynthia Ann Jordan, Attorney at Law, 921 W Broadway Ave Ste 201, Spokane, WA 99201-2119.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Bradley Allen Deaton was convicted of multiple counts of unlawful possession of a firearm. Mr. Deaton's possession of firearms was unlawful because he had previously been convicted of a felony — attempting to elude a police officer. On appeal, he argues the trial court erred by failing to grant his motion to dismiss because on two previous occasions, the police discovered he possessed firearms, and yet returned the firearms to him. By this conduct, he contends, the State implicitly indicated that his possession of the firearms was lawful, and this subsequent conviction violated his due process rights. He also contends that the court erred by denying him the ability to present an estoppel defense and by failing to suppress the evidence. We affirm Mr. Deaton's convictions.
FACTS
Mr. Deaton was convicted on July 30, 1985, of attempting to elude a police vehicle. At that time, the class C felony did not result in the loss of civil rights. As a result, Mr. Deaton maintained his ability to possess a gun and to vote. Subsequently, the laws changed and the prohibition on possession of firearms was extended to include all felonies and some misdemeanors.
Mr. Deaton had two encounters in 1995 with police officers in King County. During each of these encounters, he was cited for displaying a weapon. Mr. Deaton asserts that after each of these incidents, the police returned his firearms to him.
On December 22, 2000, Mr. Deaton was stopped for driving under the influence in King County. The police report indicates that Mr. Deaton had a firearm in his vehicle at the time of the stop. The officer inquired about the firearm and they discussed Mr. Deaton's prior felony. The police report indicates that Mr. Deaton stated that the prior felony matter had been resolved.
In early February 2003, Officer Richard Meyer of the Spokane City Police Department responded to a domestic violence call at the home of Angela Cooper and Bradley Deaton. Officers entered a room where Mr. Deaton was located, and eventually found a firearm in the room. Other firearms and ammunition were discovered, but not seized at that time. The officers indicated that Mr. Deaton volunteered the information that the guns belonged to him.
Mr. Deaton was initially charged with one count of second degree unlawful possession of a firearm based upon his prior conviction for attempt to elude. Ms. Cooper stated that the day after Mr. Deaton was arrested, she was contacted by a police officer who asked to return to the residence and retrieve the remaining firearms. She consented, and the officer removed the remaining guns from the house. The State subsequently amended the information to include 12 counts of second degree unlawful possession of a firearm.
Mr. Deaton moved to dismiss the charges on the basis that he had never been advised that he lost the right to possess firearms after the 1985 conviction and based upon the fact that police officers repeatedly returned his guns to him. The court concluded that Mr. Deaton had failed to carry his burden of showing that he relied upon affirmative representations by a governmental agent.
Additionally, the court found in part that 'the defense of estoppel . . . may only be raised when a defendant relied upon an express misleading affirmative representation by a government agent that the proscribed activity was in fact legal. There were no affirmative misleading representations made by any government agent in the present case. Therefore the defense of estoppel based on misleading government conduct is not allowed.' Clerk's Papers (CP) at 57-58.
Finally, the court found that Mr. Deaton failed to show that he received active misleading representations from a governmental agent upon which he could reasonably rely. The court concluded that it would have been reasonable to expect Mr. Deaton to make further inquiry regarding his ability to possess firearms following his contacts with the officers. The court further concluded that Mr. Deaton's due process rights had not been violated, and that he had not met the burden for an estoppel defense.
After conducting a CrR 3.5 hearing and selecting a jury, the court ruled that Mr. Deaton could not present an estoppel defense noting that the court had previously ruled the defense was not available. Mr. Deaton chose to continue with a bench trial on stipulated facts. The court found Mr. Deaton guilty of all 12 counts. He appeals.
ANALYSIS
Due Process. Mr. Deaton complains that his due process rights were violated because he was not advised that a guilty plea would result in his loss of the right to possess a firearm.
Generally, a person is guilty of unlawfully possessing a firearm in the second degree if the person owns, possesses, or controls a firearm after having been convicted of a felony other than a serious offense. Former RCW 9.41.040(1)(b)(i) (1997). "Knowledge that possession is unlawful is not an element of the crime of unlawful possession of a firearm nor does good faith belief that a certain activity does not violate the law provide a defense in a criminal prosecution." State v. Locati, 111 Wn. App. 222, 225, 43 P.3d 1288 (2002) (quoting State v. Semakula, 88 Wn. App. 719, 724, 946 P.2d 795 (1997)).
In support of his argument, Mr. Deaton relies primarily upon State v. Leavitt, 107 Wn. App. 361, 27 P.3d 622 (2001). In that case, Mr. Leavitt pleaded guilty to one count of violation of a protective order, a gross misdemeanor. The court imposed a one-year sentence, suspended on several conditions, including no possession of firearms. Yet, the court did not require Mr. Leavitt to relinquish his concealed weapons permit or his firearms. Nor did the court instruct Mr. Leavitt that the prohibitions against possessing firearms in RCW 9.41.047 extended beyond the one-year sentence, and he could possess firearms only after petition for restoration of that privilege. Leavitt, 107 Wn. App. at 363-64.
RCW 9.41.047(1) provides in pertinent part:
'At the time a person is convicted of an offense making the person ineligible to possess a firearm, . . . the convicting or committing court shall notify the person, orally and in writing, that the person must immediately surrender any concealed pistol license and that the person may not possess a firearm unless his or her right to do so is restored by a court of record.'
Mr. Leavitt relinquished his firearms for one year. Upon his receipt of a letter indicating that his probation had ended, he retrieved his firearms. Id. at 364. Subsequently, Mr. Leavitt was arrested in connection with a domestic violence incident. When asked if he had any weapons in the home, he volunteered that no weapons were in the home, but he had several in his vehicle. Id. The police found six firearms and the State charged him with six counts of second degree unlawful possession of a firearm. Id.
On appeal, the court found that the predicate-conviction sentencing court failed to advise Mr. Leavitt, as it was required to do under RCW 9.41.047(1), that he must not possess a firearm until his right to do so is restored by a court. Leavitt, 107 Wn. App. at 366. The appellate court found that the trial court's failure to properly advise Mr. Leavitt substantially prejudiced him. Id. at 368.
Additionally, the Leavitt court found that the predicate-conviction sentencing court failed to advise Mr. Leavitt that he lost his right to possess firearms for an indefinite period, as it was required to so advise by statute. As a result, the Leavitt court reasoned, 'it would be a denial of due process to require [Mr.] Leavitt to speculate about additional firearm-possession restrictions beyond his one-year probation where the sentencing court did not inform him otherwise, in spite of the Legislature's clear requirement to do so.' Id. at 372.
Ultimately, the Leavitt court held 'where a defendant can demonstrate actual prejudice arising from a sentencing court's failure to comply with the statute's mandate to advise him about the statutory firearm-possession prohibition, RCW 9.41.047 cannot serve as the basis for convicting him of unlawful firearm possession.' Leavitt, 107 Wn. App. at 373.
This case presents different facts. In this case, Mr. Deaton contends that, initially, he was not informed by the court that he could not possess firearms until he petitioned to restore his rights. However, at that time, as the court noted, the prohibitions against firearm possession did not apply to his case, and thus the court had no obligation to give him such information.
Additionally, Mr. Deaton argues that because police officers, after two post-conviction contacts, returned his guns to him, this constituted mistaken assurances from a state actor that his possession of a firearm was lawful. However, Mr. Deaton, unlike Mr. Leavitt, has not shown that he actually received assurances from a state actor. Instead, he merely had his guns returned to him, albeit in error. Mr. Leavitt, on the other hand, was not provided with the statutorily-mandated warning — a warning that was inapplicable to Mr. Deaton at his time of conviction — informing him that he could not possess a firearm until he petitioned to have his rights restored. Thus, the holding in the Leavitt case is not applicable to this case.
In any event, 'ignorance of the law is no defense.' Leavitt, 107 Wn. App. at 368. However, a limited class of cases exist where misleading governmental activity constitutes a good defense to a criminal charge. Locati, 111 Wn. App. at 227 (quoting United States v. Lansing, 424 F.2d 225, 226 (9th Cir. 1970)). This defense may rest upon several various theories, including general principles of due process and estoppel. Locati, 111 Wn. App. at 227.
In the due process context, "[t]he exception at issue addresses the legal consequences of a violation of the criminal law by an individual who takes measures to learn what conduct the government has proscribed, but is misadvised by the government itself." Leavitt, 107 Wn. App. at 369 (quoting Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482, 485 (1997)). In order to successfully advance this defense, "more is required than a simple showing that the defendant was as a subjective matter misled, and that the crime resulted from his mistaken belief." Locati, 111 Wn. App. at 227 (quoting Lansing, 424 F.2d at 227). 'At a minimum, a criminal defendant relying on an estoppel or misleading conduct defense must show his or her reliance on misleading information provided by the government was objectively reasonable under the particular circumstances of the case.' Locati, 111 Wn. App. at 227.
Factors the court will consider in this reasonableness determination include the authority of the source providing the misleading information and whether the defendant received inconsistent information from the same or a different source. Locati, 111 Wn. App. at 228; see, e.g., Leavitt, 107 Wn. App. at 371-73 (sentencing court failing to inform defendant of firearm prohibition); Cox v. Louisiana, 379 U.S. 559, 570-71, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965) (police chief, in presence of sheriff and mayor, misleading defendant as to permitted area of demonstration); United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987) (defendant's reliance on misinformation from federally licensed gun dealer reasonable in light of defendant's attorney's mistaken opinion as to legality of gun possession); Lansing, 424 F.2d at 226-27 (correspondence and forms from draft board).
In this case, Mr. Deaton has not shown more than he held a subjective belief that he was misled by the police department's actions in returning his firearms to him. Nor has he shown that his reliance upon the police department's return of the guns was objectively reasonable. In fact, Mr. Deaton failed to show that he took any measures to actively learn if he could lawfully possess his guns, and that as a result of this investigation, he was misadvised. Moreover, he fails to show that he received inconsistent information related to whether he could possess the firearms.
As the trial court found in the motion to dismiss, Mr. Deaton failed to show that he relied upon affirmative representations by a governmental agent, upon which he could reasonably rely. The court did not err.
For similar reasons, the court did not err by finding that Mr. Deaton could not assert an estoppel defense. The court's conclusion on this issue was:
There are a few limited cases where the defense of estoppel is applicable. In State v. Krezowski [sic], 106 Wn. App. 638, 646, 24 P.3d 485 (2001), held that this defense may only be raised when a defendant relied upon an express misleading affirmative representation by a government agent that the proscribed activity was in fact legal. There were no affirmative misleading representations made by any government agent in the present case. Therefore the defense of estoppel based on misleading government conduct is not allowed.
CP at 57-58.
In Krzeszowski, the court rejected an estoppel argument, noting: 'Where the government agent has not expressly represented the activity as legal, the defense does not apply.' Krzeszowski, 106 Wn. App. at 646. In that case, the court restored the defendant's civil rights, but did not actively or affirmatively represent to him that he could possess firearms. As a result, the appellate court found that '[a]bsent the express representation that the restoration includes the right to possess firearms, there can be no entrapment by estoppel.' Id. at 647.
This case presents similar facts in that the police department merely returned the firearms to Mr. Deaton. No evidence indicates that the police or any other state actors affirmatively and expressly informed him that it was lawful for him to possess the firearms. As a result, Mr. Deaton's estoppel defense fails.
Suppression of Evidence. Mr. Deaton argues that the court erred by denying his motion to suppress the evidence because the search of the residence was illegal. The State responds that this issue was abandoned and the trial court never ruled on the motion.
During the State's motion to amend on May 21, 2003, Mr. Deaton's counsel made the following statement:
As we have discussed in chambers, there had been a suppression motion set along with the dismissal motion. Once the State amended the information the first time and added 11 other counts of possession of a firearm, more or less rendered moot the suppression motion as far as the first firearm had gone.
Report of Proceedings (RP) at 7. Subsequently, the court conducted a CrR 3.5 hearing, but no CrR 3.6 hearing. This court will not review on appeal an alleged error not raised at trial unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). An appellant must show actual prejudice in order to establish that the error is 'manifest.' State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). Without an affirmative showing of actual prejudice, the asserted error is not 'manifest' and thus is not reviewable under RAP 2.5(a)(3). State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Mr. Deaton fails to address the fact that this issue is raised for the first time on appeal, and whether it constitutes a manifest error affecting a constitutional right.
'If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.' McFarland, 127 Wn.2d at 333. Thus, the defendant must show the motion likely would have been granted based on the record in the trial court. State v. Contreras, 92 Wn. App. 307, 313-14, 966 P.2d 915 (1998) (quoting McFarland, 127 Wn.2d at 334 n. 2). Where the record is sufficiently developed, an appellate court can determine whether a motion to suppress clearly would have been granted or denied, and thus can review the suppression issue, even in the absence of a motion and trial court ruling thereon. Contreras, 92 Wn. App. at 314. As a result, the court must look to the facts of the seizure and arrest to determine whether a motion to suppress would properly have been granted or denied. Id.
In this case, both the defense and the State submitted briefs related to the suppression issue. Predictably, Mr. Deaton argued that the officers were not invited into the residence, and the State argued that Ms. Cooper gave them consent to enter. The record for the CrR 3.5 hearing does not explore the issue in detail. Ms. Cooper acknowledged that she called 911 and asked for police assistance in removing Mr. Deaton from her home. She admitted that she opened the door for the officers and that, in response to a question from a police officer, she told them that she had called 911. She stated, 'And at that time, one proceeded in and the other officer followed him.' RP at 37.
Thus, it is not clear whether the court would have granted a suppression motion based upon the record presented. In the absence of a factual finding on this matter, the court must conclude that no actual prejudice was shown, and therefore the error was not manifest. McFarland, 127 Wn.2d at 333.
We affirm Mr. Deaton's convictions.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., concur.