Opinion
No. 51535-7-I. Linked w/No. 51534-9-I and No. 51536-5-I.
Filed: March 29, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-06835-7. Judgment or order under review. Date filed: 11/22/2002. Judge signing: Hon. Charles W Mertel.
Counsel for Appellant(s), Sharon Jean Blackford, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Daniel Jason Clark, King County Prosecuting Attorney, W554 King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
When Leslie Kull was arrested on a misdemeanor warrant, she asked her friend to go into her apartment to get her purse. The trial court found the police officer articulated legitimate safety concerns that allowed him to follow Kull's friend and the cocaine in plain view on Kull's bedroom dresser was lawfully seized. Kull claims that because the trial court did not resolve disputed testimony about whether she gave consent to enter her apartment, her conviction for possession of cocaine must be dismissed. Kull also challenges the trial court's conclusion that the entry and seizure was lawful. She contends that under both the Fourth Amendment and Washington State Constitution article I, section 7, her conviction should be dismissed. We affirm.
FACTS
On July 13, 2000, Seattle Police Officers Zsolt Dornay and David Clement were assigned a list of active warrants. After verifying Kull's warrant, they obtained a photo of her and went to her last known address in Ballard. In the apartment complex hallway on the way to Kull's apartment the officers saw a woman in the laundry room who resembled Kull. When asked, the woman confirmed she was Leslie Kull. Officer Dornay told her there was a $500 warrant for her arrest for a misdemeanor hit and run, and arrested and handcuffed her.
The officers did not read Miranda warnings to Kull. Miranda v. Arizona, 384 U.S. 436, 88 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Kull asked questions about the warrant and whether she had to go to jail. Officer Dornay told her that she could avoid going to jail if she had $500 for bail. Kull asked her friend, Warren Miller, to go into the bedroom of her apartment to get her purse. Officer Dornay left Kull with his partner and followed Miller. In Kull's bedroom, Officer Dornay saw white powder that he recognized as cocaine on top of the dresser.
Officer Dornay told Kull he found cocaine in her bedroom and asked if there were any other drugs or weapons in the apartment. Kull admitted there were drugs in her purse and a gun in her bedroom. The officers searched Kull's purse and found methamphetamine. They found a .45 semiautomatic firearm under Kull's bed.
Kull was charged with possession of cocaine, possession of methamphetamine and unlawful possession of a firearm in the second degree.
Kull was also charged with two other counts of Violation of the Uniform Controlled Substances Act related to a separate incident on May 4-5, 2000. The State dismissed these charges based on lack of evidence.
Kull moved to suppress the firearm, the methamphetamine and the cocaine. At the conclusion of the pretrial hearing, the State conceded that because no Miranda warnings were given, the gun should be suppressed and the court dismissed the firearm charge. The court ruled the officers had no justification to search Kull's purse, suppressed the methamphetamine and dismissed the possession of methamphetamine charge. The trial court denied Kull's motion to suppress the cocaine. While the court acknowledged there was disputed and conflicting testimony about whether Kull gave consent to enter her apartment, the court found it unnecessary to resolve the conflict. The court concluded Officer Dornay's safety concerns were an independent, legitimate reason to follow Miller after Kull asked him to get her purse from the bedroom.
Officer Dornay testified that it was noisy in the laundry room and Kull had a lot of questions, so he asked if they could go in her apartment to continue the discussion and she agreed. He testified that he followed Miller because he was concerned about officer safety and did not know what Miller might recover from the bedroom. Officer Dornay said he saw the cocaine from where he was standing in the bedroom doorway.
According to Miller, Kull and the officers were in the hallway when Kull asked him to get her purse. Miller went into the bedroom and was looking for the purse when he looked up and saw Officer Dornay in the room with him.
According to Kull, Miller was in the hallway when she asked him if he could get her purse from her bedroom. Kull testified that when Miller turned to go into the apartment, one of the officers followed him. Kull claimed that the officers never asked her permission to go inside the apartment and that when Officer Dornay started in after Miller she said, 'hey, what are you doing,' and asked him not to go in the apartment. RP (11/4-5/02) at 71.
The court found Kull guilty of possession of cocaine. Kull appeals.
Kull received a standard range sentence.
DISCUSSION
Kull argues that because the trial court did not resolve the conflict about whether she gave the officers consent to enter her apartment, the State failed to carry its burden to show entry was lawful and her conviction must be reversed. When a trial court does not resolve a disputed fact following a suppression hearing, the appellate court must presume the State failed to carry its burden of establishing that fact. State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997).
In its written order the trial court found 'the disputed facts are immaterial to the issues in this case,' because:
CP at 23.
the officers had legitimate officer safety concerns in following Miller to the bedroom door after the defendant asked him to retrieve her purse from inside the bedroom. Once in the bedroom door, the officer was in a lawful vantage point, the cocaine was in plain view, and properly seized.
CP at 23.
Based on the court's oral ruling, Kull argues the court improperly relied on her arrest as authority to enter the apartment. In its oral decision the trial court said:
. . . I think it's part and parcel of the arrest that they would allow her to go into her apartment and pick up some things to go to the station, and I think at that point they have a right to accompany her, and that's — I appreciate it may be a stretch to get from the front doorway into the bedroom, but that's in fact where she was sending people to get stuff for her, so I think it's only logical and reasonable that the officers would at least track around there to be sure nothing was going on behind their backs, so finding the cocaine in plain view on the top of the dresser I think is something that doesn't violate any search and seizure type of issues. So I'm going to allow it.
RP (11/4-5/02) at 102.
An oral opinion is a tentative ruling and may be used to clarify, but not to contradict, a court's written decision. See State v. Martinez, 76 Wn. App. 1, 3-4 n. 3, 884 P.2d 3 (1994) (oral opinion does not become final unless it is incorporated in written findings of fact and conclusions of law; oral decision can be used to interpret but not to impeach written findings and conclusions); State v. Bryant, 78 Wn. App. 808, 812-13, 901 P.2d 1046 (1995) (an appellate court may consider a trial court's oral decision so long as it is not inconsistent with the trial court's written findings and conclusions).
The trial court's oral decision does not contradict its written decision that the officers had legitimate officer safety concerns in following Miller. Although the court did not resolve the factual question of whether Kull gave consent, it relied on a separate and independent justification that allowed Officer Dornay to enter Kull's apartment without her consent. Armenta does not require reversal.
Constitutional Issues
Kull claims the police officers' entry into her apartment and seizure of the cocaine in plain view violated the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution.
1. Fourth Amendment
Kull argues the officer's entry into her bedroom was not within the scope of a permissible search incident to arrest and violated the Fourth Amendment. The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' Warrantless searches are per se unreasonable under the Fourth Amendment unless they fall within 'a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is a search incident to arrest. Chimel v. California, 395 U.S. 770, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Under Chimel, a lawful custodial arrest justifies the contemporaneous search without a warrant of the person arrested and of the area within his immediate control. Id. at 763.
Such a search is reasonable to ensure officer safety and to prevent the destruction of evidence. Chimel, 395 U.S. at 763.
Kull relies on United States v. Griffith, 537 F.2d 900 (7th Cir. 1976) and United States v. Hill, 730 F.2d 1163 (8th Cir. 1984) to argue that after her arrest the officers improperly brought her into the apartment to justify their search of the apartment. Under the Fourth Amendment, arresting officers cannot expand the scope of a lawful search incident to arrest by moving a suspect and impermissibly changing the location of the area within the suspect's immediate control. Griffith, 537 F.2d at 904; Hill, 730 F.2d at 1167.
In Griffith, the court held arresting officers cannot expand the area of a search incident to arrest by requiring a defendant to dress and move to different locations:
Just as 'Chimel does not permit the arresting officers to lead the accused from place to place and use his presence in each location to justify a 'search incident to the arrest'," [citation omitted] it does not permit the officers to achieve the same result by ordering the accused to dress and then not bringing him his clothes, thus requiring him to move about the room in order to comply with their directions.
In Hill, the officers agreed the defendant could return to his home to get some personal belongings. The officer who accompanied the defendant searched a closed suitcase that belonged to the defendant. The court held the search of the suitcase was unreasonable because it was not within the defendant's area of immediate control and the defendant did not approach it. 730 F.2d at 1167. The Hill court explained that 'official accompaniment of an arrestee to unsecured areas for legitimate purposes and the seizure of items in plain view in such areas are not unreasonable measures under the fourth amendment' but that law enforcement officers should not be allowed 'to maneuver an arrestee close to personal belongings' in order to search items within the arrestee's immediate control. Id.
Here, unlike Griffith and Hill, the officers did not maneuver Kull or give her directions. There is no dispute that Kull asked Miller to retrieve her purse from the bedroom and Miller was acting at her direction. See United States v. Mason, 523 F.2d 1122, 1126 (D.C. Cir. 1975) (distinguishing between officer-prompted and arrestee-prompted movements). Based on these facts, there is no violation of the Fourth Amendment. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982). In Washington v. Chrisman, a police officer observed a student leaving a dormitory with a bottle of gin. The officer stopped him and asked for his identification. The student said his identification was in his dorm room and asked if he could retrieve it. The officer said he would have to go with him and the student agreed. While the officer was standing in the open doorway he observed the student's roommate, Chrisman, place a small box in a medicine cabinet. Chrisman appeared nervous. The officer also saw marijuana seeds and a hashish pipe on a desk in the room. Both students were arrested for possession of drugs.
Chrisman moved to suppress the drugs. The Washington Supreme Court in State v. Chrisman (Chrisman I) held the search violated the Fourth Amendment. 94 Wn.2d 711, 619 P.2d 971 (1980). On appeal to the United States Supreme Court, the Court held that the officer was authorized to accompany Chrisman to his room to obtain identification and 'had a right to remain literally at [his] elbow at all times.' 455 U.S. at 6.
We hold, therefore, that it is not 'unreasonable' under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety — as well as the integrity of the arrest — is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.
Indeed, were the rule otherwise, it is doubtful that an arrested person would ever be permitted to return to his residence, no matter how legitimate the reason for doing so. Such a rule would impose far greater restrictions on the personal liberty of arrested individuals than those occasioned here. 455 U.S. at 7, 7 fn.4
Kull attempts to distinguish Washington v. Chrisman. She argues the officer in Chrisman was allowed to follow the student solely to prevent his escape and Officer Dornay had no justification to follow Miller. But in addition to preventing escape, the United States Supreme Court relied on officer safety concerns. Here, the trial court explicitly found Officer Dornay articulated legitimate safety concerns that justified following Miller.
The case cited by the State, State v. Payano, 528 A.2d 721, 725-26 (R.I. 1987), also supports the trial court's conclusion. In Payano, the arrested defendant asked that someone get his shoes from the bedroom. The officer permitted a woman at the house to get the defendant's shoes but followed her to ensure officer safety. While in the bedroom, the officer saw a weapon in plain view. The court held the weapon was admissible because the officers' actions were reasonable.
Kull argues the officer's reasonable belief of danger in Payano was crucial to the court's decision and her case is different because the officers who arrested her had no reason to believe she was armed or dangerous. Again, Kull's argument fails because the trial court found that Officer Dornay had legitimate officer safety concerns. Under Washington v. Chrisman, Officer Dornay's decision to follow Miller was justified and did not violate the Fourth Amendment.
2. Article I, section 7
Kull also argues that Officer Dornay's warrantless entry into her bedroom violated article I, section 7 of the Washington Constitution. She contends Officer Dornay did not articulate specific facts that justified entry. Article I, section 7 of the Washington Constitution provides, '[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.' The Supreme Court has interpreted article I, section 7 to provide greater protections for individual privacy rights. State v. Chrisman, 100 Wn.2d 814, 818, 676 P.2d 419 (1984) (Chrisman II).
In Chrisman II, the Washington State Supreme Court rejected the United States Supreme Court's 'bright line' rule that it was 'not 'unreasonable' under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates,' and relied on article I, section 7 to conclude that the officer's entry into the defendant's dorm room was not justified. While the Court agreed legitimate officer safety concerns could allow warrantless entry into a home, it stated:
Washington v. Chrisman, 455 U.S. at 7.
We will not find compelling reasons for full custodial arrests and warrantless entries in a vacuum. Rather, the use of these practices can only be permitted under state law when the officer possesses specific articulable facts justifying custody and/or entry into a private dwelling.
The facts lead to the conclusion that entry into the room was not justified. Neither the officer nor the evidence was threatened. The setting precluded escape. We now hold that the officer's warrantless entry into the dormitory room, following the misdemeanor arrest, was not permitted because the officer was not presented with facts sufficient to demonstrate (1) a threat to the officer's safety, or (2) the possibility of destruction of evidence of the misdemeanor charged, or (3) a strong likelihood of escape. Indeed the fact that the officer did not initially accompany Overdahl into the room shows the absence of any concern for safety or the integrity of the arrest. [W]e think the officer abandoned any claim of reasonableness by allowing Overdahl to enter alone. In this case it is clear that the officer entered the room for the purpose of a search and nothing more. In cases of minor violations, where no danger exists, and where there is no threat of destruction of the evidence, we can find no compelling need to enter a private residence.
In short, under the facts of this case, the first element of the plain view doctrine was not met. There was no prior justification for the intrusion.
Chrisman II, 100 Wn.2d at 820, 821-22.
The trial court found Officer Dornay's testimony credible and concluded safety concerns justified following Miller. On review of a suppression motion, the reviewing court must give deference to the trial court's credibility determinations. State v. Hill, 123 Wn.2d 641, 646, 870 P.2d 313 (1994). Officer Dornay testified that he did not know Miller and he followed him 'so I could see, you know, what he was doing in the bedroom' and because of 'officer safety issues.' When Officer Dornay was asked what his concerns were he said '[h]im going in and getting a weapon to injure us.' These concerns justified Officer Dornay's following Miller into the apartment. See State v. McKinney, 49 Wn. App. 850, 857, 746 P.2d 835 (1988) (the officers were justified in entering a defendant's home upon arrest for a driving offense due to the defendant's propensity to escape); State v. Nelson, 47 Wn. App. 157, 161-62, 734 P.2d 516 (1987) (officers' generalized fear that the defendant might have a weapon justified their following arrested defendant into his home when he went in to get his jacket and keys); State v. Wood, 45 Wn. App. 299, 308-09, 725 P.2d 435 (1986) (officers were justified in accompanying arrested defendant into his home where he posed a risk as a person who had previously violated parole). Kull also relies on State v. Mendez, 137 Wn.2d 208, 212, 970 P.2d 722 (1999), to argue that Officer Dornay did not have authority to follow Miller. In Mendez, the Court held that although an officer has authority to detain a driver for a traffic infraction, an officer must have 'an articulable rationale predicated upon safety considerations to order the passengers out of the car or to remain in the car.' Id. at 212. Officer Dornay articulated safety concerns that permitted him to follow Miller.
RP (11/4-5/02) at 28.
RP (11/4-5/02) at 28.
In addition, unlike the officer in Chrisman, Officer Dornay followed Miller into the apartment and did not abandon any claim to reasonableness.
The Supreme Court distinguished between safety concerns when arresting an occupant of a vehicle and those present in a noncriminal traffic stop. See Mendez, 137 Wn.2d at 214, fn.2.
Plain View Doctrine
Under the plain view doctrine the State must prove (1) prior justification for the intrusion, (2) inadvertent discovery of incriminating evidence, and (3) immediate knowledge that evidence has been discovered. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Bustamante-Davila, 138 Wn.2d 964, 982, 983 P.2d 590 (1999).
Inadvertent discovery is no longer required under the Fourth Amendment. Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); see State v. Hudson, 124 Wn.2d 107, 114 n. 1, 874 P.2d 160 (1994). No Washington court has held that the inadvertence prong still applies for analysis of the plain view doctrine under article I, section 7. See State v. Hoggatt, 108 Wn. App. 257, 271 fn. 32, 30 P.3d 488 (2001).
Kull claims discovery of the cocaine was not inadvertent because one of Officer Dornay's reasons for following Miller was 'to ensure that there was no illegal activity.' But the trial court concluded that officer safety justified following Miller and that seeing the cocaine on Kull's dresser was inadvertent. Kull also contends that because the officer tested the white powder to verify it was cocaine, he did not know it was cocaine. Officer Dornay testified, and the court found, that he recognized the white substance in the baggie on the dresser as cocaine. The officer did not have to be certain the white powder was cocaine to meet the 'immediately apparent' prong of the plain view doctrine. State v. Gonzalez, 46 Wn. App. 388, 400, 731 P.2d 1101 (1986); see also Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (an officer need only have probable cause to believe the object in plain view was incriminating evidence); State v. Lair, 95 Wn.2d 706, 716, 630 P.2d 427 (1981). Because Officer Dornay was justified in following Miller and inadvertently discovered what he recognized as cocaine, he had a right to seize that evidence. Bustamante-Davila, 138 Wn.2d at 982-83.
RP (11/4-5/02) at 28.
Conclusion
The trial court's failure to resolve the dispute about whether Kull gave consent to the officer to enter her apartment does not require reversal. The court relied on an independent and legitimate justification to find the officer's entry was lawful. The seizure of the cocaine did not violate the Fourth Amendment or article I, section 7 of the Washington State Constitution.
We affirm the trial court's decision to deny Kull's motion to suppress the cocaine and affirm Kull's conviction.
COLEMAN, J. and BAKER, J., concur.