Opinion
No. 61153-4-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-03335-6, Richard J. Thorpe, J., entered December 20, 2007.
Affirmed by unpublished per curiam opinion.
Trenton Johnson was arrested for violating a Stay Out of Drug Area (SODA) order issued by Everett Municipal Court as a condition of his suspended sentence for possession of drug paraphernalia. In a search incident to arrest, police found cocaine. Johnson moved to suppress the cocaine, arguing that the SODA order was unconstitutional and that his seizure based upon it was unlawful. The trial court denied the motion and, following a bench trial on stipulated facts, found Johnson guilty of possessing cocaine. Johnson appealed, arguing that the Everett municipal ordinances authorizing SODA orders are unconstitutional. But Johnson failed to challenge the constitutionality of RCW 3.50.320, which grants the municipal court authority to enter SODA orders. Moreover, Johnson failed to demonstrate that the SODA order was entered under the authority of a grossly and flagrantly unconstitutional statute or ordinance. We affirm.
Facts
On January 23, 2007, Trenton Johnson became subject to a two-year SODA order from Everett Municipal Court. The SODA order was issued as a condition of Johnson's suspended sentence for possession of drug paraphernalia — a misdemeanor.
On November 3, 2007, Everett police officers noticed Johnson on the corner of Everett Avenue and Hoyt Avenue. That location is within the boundaries of one of Everett's designated SODA areas. One of the officers recognized Johnson from past contacts. He was aware that Johnson was subject to a SODA order from Everett Municipal Court. The officers approached Johnson and informed him of the SODA order. Johnson said that he knew of the order, but he claimed to be helping someone who appeared to be lost. The officers confirmed the existence of the SODA order through dispatch and found that there were no exceptions written into the order.
Johnson was arrested for violation of the SODA order. In a search incident to arrest, the officer found a broken glass pipe with burnt residue and several small white rocks in Johnson's pants pocket that field tested positive for cocaine. Police later found a felony escape warrant, and they booked him on that as well.
Johnson was charged with possession of a controlled substance. Before trial, Johnson moved to suppress the cocaine. He argued that because the SODA order was unconstitutional, his arrest based upon it was invalid and the subsequent search was unlawful. The trial court denied Johnson's motion. The case proceeded to bench trial on stipulated facts, and he was convicted. Johnson appealed.
Analysis
Johnson argues that the trial court erred in denying his motion to suppress evidence of cocaine discovered in the search incident to his arrest for violating the SODA order. His challenge is based upon two Everett ordinances — chapter 10.38 EMC, "Protection Against Drug Trafficking," and former chapter 10.13 EMC, "Violation of Court Orders." Johnson contends that chapters 10.13 and 10.38 EMC are unconstitutional because they (1) conflict with and are preempted by chapter 10.66 RCW, (2) are overbroad, (3) violate the right to travel, and (4) are grossly and flagrantly unconstitutional. Accordingly, Johnson claims that his arrest for violating the SODA order was invalid, that the search incident to arrest was illegal, that the cocaine discovered during the illegal search must be suppressed, and that his conviction for cocaine possession must be reversed and dismissed for lack of evidence.
Chapter 10.13 EMC was substantially amended after Johnson was sentenced in January 2007 on the drug paraphernalia charge. It now specifically addresses the municipal court's authority to enter SODA orders.
These arguments evince an incomplete understanding of the authority underlying the municipal court's SODA order, which was imposed as a condition of his misdemeanor suspended sentence for possession of drug paraphernalia in Everett Municipal Court.
EMC 10.13.010 authorizes the Everett Municipal Court to impose conditions of a suspended sentence. That ordinance permits the municipal court to
issue written orders to criminal defendants describing the conditions of their pretrial release or the post-conviction conditions of suspension or deferral of their sentences, warning the defendants of the consequences of violating a condition of the order, and authorizing rearrest of the defendant if he or she violates a condition of the order.
And EMC 10.13.030 provides,
Whenever a person is subject to a court order and the person knows of the order, a police officer who has probable cause to believe that the person is, in the officer's presence, violating or failing to comply with any of the conditions of the order shall have the authority to bring the person before the court wherein the order was issued, and for such purpose may rearrest such person without warrant or other process.
But there is an independent statutory basis for the SODA order that Johnson has failed to challenge. RCW 3.50.320 permits a municipal court to "impose sentence by suspending all or a portion of the defendant's sentence or by deferring the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof." And RCW 3.50.340 provides that the deferred or suspended sentence "may be revoked if the defendant violates or fails to carry out any of the conditions of deferral or suspension."
Because the Sentencing Reform Act (SRA) "does not control the imposition of probationary conditions upon misdemeanant offenders," the conditions imposed under RCW 3.50.320 need not be directly "crime related" as required by the SRA. See State v. Williams, 97 Wn. App. 257, 263, 983 P.2d 687 (1999) (upholding conditions of suspended sentence imposed by a district court pursuant to RCW 3.66.067, which is identical to RCW 3.50.320 relating to municipal courts). It is sufficient if the conditions bear a reasonable relationship to the duty to make restitution or tend to prevent the commission of future crimes. Id.
The municipal court had authority under either RCW 3.50.320 or under chapter 10.13 EMC to impose the SODA order as a condition of Johnson's suspended sentence for possession of drug paraphernalia. Johnson failed to challenge RCW 3.50.320. Because Johnson's SODA order was entered under the authority of that statute as well as chapter 10.13 EMC, Johnson has failed to establish that the arresting officer lacked the authority of law to arrest him.
EMC 2.108.010 provides that Everett Municipal Court "shall have jurisdiction and shall exercise all powers enumerated herein and in Chapter 3.50 RCW together with such other powers and jurisdiction as are generally conferred upon such court in this state either by common law or by express statute."
We also reject Johnson's argument that his arrest was unlawful because chapters 10.13 and 10.38 EMC are unconstitutional. Johnson misunderstands the fundamental differences between chapters 10.13 and 10.38 EMC. Chapter 10.13 EMC grants the municipal court authority to generally impose conditions for a suspended sentence. It also provides police officers authority to rearrest an individual if the officer has probable cause to believe that the defendant is subject to an order issued under chapter 10.13 EMC, knows of the order, and violates it in the officer's presence. In contrast, chapter 10.38 EMC is entitled "Protection Against Drug Trafficking." EMC 10.38.020 provides that any person who willfully disobeys an off-limits order issued under chapter 10.66 RCW is guilty of a gross misdemeanor. Chapter 10.66 RCW authorizes superior or district courts to enter one-year "off-limits orders" enjoining known drug traffickers from entering "protected against drug trafficking" (PADT) areas. RCW 10.66.010(4), (5). A "known drug trafficker" is a person who has previously been convicted of a drug offense and subsequently arrested for another drug offense in Washington. RCW 10.66.010(3); EMC 10.38.010(B). A "drug offense" is a felony violation of chapters 69.50 or 69.52 RCW or equivalent law in another jurisdiction.
SODA orders and PADT orders are not the same. In State v. White, 76 Wn. App. 801, 888 P.2d 169 (1995), the defendant argued that the trial court lacked authority under chapter 10.66 RCW to impose a SODA order as a condition of community placement because he had no felony drug offenses at the time of sentencing. Because it was a SODA order entered as a condition of community placement under RCW 9.94A.120, not a PADT order issued under chapter 10.66 RCW, this court rejected the defendant's argument and upheld the SODA order. Similarly, a SODA order under RCW 3.50.320 or EMC 10.13.010 is not the same as a PADT order under chapter 10.66 RCW and chapter 10.38 EMC.
Johnson's order is plainly a SODA order entered as a condition of suspended sentence under RCW 3.50.320 and/or chapter 10.13 EMC, not a PADT order issued against a known drug trafficker under chapter 10.66 RCW and chapter 10.38 EMC. The order is entitled "Additional Terms and Conditions of Sentence: Stay Out of Drug Areas (S.O.D.A)." The order does not reference chapter 10.66 RCW or chapter 10.38 EMC, and it does not use the term "PADT." It ordered Johnson to "stay out of the drug areas described and shown on Attachment A." The record includes two documents labeled "Appendix A and B" describing SODA areas in the City of Everett. It is a two-year order issued by Everett Municipal Court for a misdemeanor drug paraphernalia offense. In contrast, PADT orders last for only one year and are limited to known drug traffickers. The order states, "Violation of this Order may result in imposition of the remainder of your jail term of 80 days, any previously suspended fine and/or other penalties or sanctions allowed by law." Following Johnson's arrest for violation of the SODA order, the State did not charge Johnson with a gross misdemeanor as authorized by EMC 10.38.020. Rather, Johnson was charged solely with possession of cocaine. Chapter 10.66 RCW and chapter 10.38 EMC authorizing PADT orders are simply not at issue in this case, and any challenges to their constitutionality are inapposite.
Additionally, Johnson has failed to establish that the Everett police lacked the authority to arrest him under chapter 10.13 EMC. Generally, "an arrest under a statute that is valid at the time of the arrest and supported by probable cause remains valid even if the basis for the arrest is later held unconstitutional." State v. Potter, 156 Wn.2d 835, 842, 132 P.3d 1089 (2006) (citing Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979)). The Court has carved out a narrow exception to this general rule. "The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." DeFillippo, 443 U.S. at 38.
A law is grossly and flagrantly unconstitutional where a substantially similar law has been adjudicated unconstitutional in a court of this state. State v. White, 97 Wn.2d 92, 103-04, 640 P.2d 1061 (1982). In White, the court applied the "grossly and flagrantly unconstitutional" exception to a stop-and-identify statute, reasoning that substantially the same language in a different statute had been adjudicated unconstitutional and police should have known that the statute could not serve as the basis for a lawful arrest. Id. Accordingly, the White court held that the evidence seized in that search was inadmissible. But in Potter, the Washington Supreme Court refused to apply the "grossly and flagrantly unconstitutional" exception to invalidate defendants' arrests for driving with a suspended license statute because no prior cases invalidated the statute that provided the basis for their arrests. Similarly, in State v. Brockob, 159 Wn.2d 311, 341-42, 150 P.3d 59 (2006), the court held that subsequent invalidation of a statute that provided probable cause for an officer to make an arrest does not render the arrest unlawful.
Johnson acknowledges that chapter 10.66 RCW — a statute that bears similarities to chapter 10.38 EMC — was upheld as constitutional in State v. McBride, 74 Wn. App. 460, 873 P.2d 589 (1994). He nevertheless contends that the police who arrested him should have recognized that chapters 10.38 and 10.13 EMC are grossly and flagrantly unconstitutional because, unlike chapter 10.66 RCW, they are overbroad and limit the right to travel. But Johnson has failed to point to any authority holding that an ordinance or statute substantially similar to chapters 10.38 or 10.13 EMC was unconstitutional. Instead, he argues that the arresting officers should have analyzed the McBride court's rationale upholding chapter 10.66 RCW in deciding whether a court might invalidate chapters 10.38 and 10.13 EMC. This is a plainly incorrect application of the narrow "grossly and flagrantly unconstitutional" exception. "Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement." DeFillippo, 443 U.S. at 38.
A search incident to a valid arrest is a recognized exception to the warrant requirement. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). An officer who makes a lawful custodial arrest based on probable cause may search the arrested person incident to that arrest. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469 (2007). "Probable cause exists when the arresting officer is aware of facts and circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed." Potter, 156 Wn.2d at 840.
Thus, the key issue is whether Johnson's arrest was lawful. The arresting officers saw Johnson in a SODA area and knew that he was under a SODA order. Johnson acknowledged that he knew about the order, and the officers confirmed the existence of the order. Because the officers had probable cause to believe Johnson violated the SODA order, they had the authority to search Johnson incident to the arrest. We conclude that the trial court did not err in denying Johnson's motion to suppress evidence of cocaine discovered during that search.
Because the sole issue in this case is whether the trial court erred in denying Johnson's motion to suppress evidence discovered in a search incident to arrest for violating the SODA order, Johnson's remaining constitutional challenges to chapter 10.13 EMC are inapposite.
In sum, the Everett Municipal Court had the authority under RCW 3.50.320 and chapter 10.13 EMC to issue the SODA order. Johnson did not challenge the constitutionality of RCW 3.50.320. Chapter 10.38 EMC and chapter 10.66 RCW authorize PADT orders and have no applicability in this SODA order case. Chapter 10.13 EMC is not grossly and flagrantly unconstitutional. We affirm.