Opinion
No. 32481-4-II.
May 16, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-00794-5, Christine A. Pomeroy, J., entered October 29, 2004.
Counsel for Appellant(s), Kent W. Underwood, Attorney at Law, 535 E Dock St Ste 100, Tacoma, WA 98402-4629.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6001.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Quinn-Brintnall, C. J., and Armstrong, J.
Joseph Reyes appeals his conviction of first degree unlawful possession of a firearm and unlawful possession of a controlled substance while armed with a firearm. He argues that the trial court erred when it (1) failed to enter written findings and conclusions from the Criminal Rule (CrR) 3.6 hearing and (2) improperly admitted evidence from an unlawful search. Finding no error, we affirm.
FACTS I. Substantive Facts
At 12:40 a.m. on April 23, 2004, Yelm police officer Mitchell King stopped a vehicle driven by Melissa Falls for not having its license plate properly illuminated. Reyes, who was in the back seat, was one of three passengers in the car. King noted that all four people in the car appeared nervous. Falls told King that they were trying to take the back way from Tacoma to Olympia and that they were lost. She could only produce a state identification card and not a driver's license and she admitted to King that her license was suspended. When King checked Falls' identification, he discovered that she had a suspended license, third degree, and he placed her under arrest.
Due to the late hour, and the fact that he was alone, King asked the three passengers to remain in the car while he processed Falls' arrest, which took about ten minutes. Subsequently, King returned to the car to conduct a search incident to Falls' arrest. He asked the other three passengers to step out of the car while he searched. When they exited the car, they left two backpacks in the back seat, neither of which had exterior identification of ownership. King first searched the backpack that belonged to Catherine Taylor. King assumed it was hers because it had been between Taylor's legs in the car. King found a white powdery substance in the backpack, which field tested positive for methamphetamine. He then placed Taylor under arrest, read her Miranda warnings, and asked her if there was anything else in the car that he should know about. Taylor responded that Reyes had a gun in the other backpack.
King testified at the CrR 3.6 hearing that he assumed the backpack belonged to Taylor because it contained items a woman would own. His testimony is unclear as to whether he assumed the backpack belonged to her before he searched it.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
King called for backup and continued his search of the car. He noticed five .22 caliber rounds on the floor in the backseat area of the car next to the second backpack in the area where Reyes had been sitting. Reyes denied owning the second backpack and said that he was holding it for a friend, but that the jewelry inside it was his. When King searched the second backpack he found a loaded .22 caliber pistol, a knife, a throwing star and a bag of tan powdery substance that field tested positive for methamphetamine. In addition, King found Reyes' temporary ID card in the backpack. King placed Reyes under arrest. The dispatcher reported that Reyes had six felony convictions and one domestic violence conviction.
The court did not allow the State to enter into evidence the knife and the throwing star, finding that the probative value did not outweigh the prejudicial effect.
II. Procedural Facts
The State of Washington charged Reyes with one count of first degree unlawful possession of a firearm and one count of unlawful possession of a controlled substance while armed with a firearm.
Following a CrR 3.6 hearing, the court ruled that King's search of Reyes' backpack was legal and allowed the State to admit the evidence found in the backpack.
A jury convicted Reyes of both counts. The court sentenced Reyes to 77 months, plus and 18-month consecutive enhancement, for the first degree unlawful possession of a firearm conviction (count I) and to 12 months for the unlawful possession conviction (count II), for a total of 107 months.
ANALYSIS A. CrR 3.6 Findings
Reyes asserts that the trial court erred in failing to enter written findings and conclusions following the CrR 3.6 hearing. Reyes' argument fails, however, because the court did submit findings and conclusions.
B. Search
Reyes argues that the search of his backpack was improper and that the trial court consequently erred when it admitted the evidence found in it. Without naming the statute, Reyes asserts that because King arrested Falls under a statute that the Washington Supreme Court subsequently found unconstitutional, Falls' arrest and the search incident to her arrest were invalid. Reyes also argues that (1) King improperly seized him when King told him and the other passengers to stay in the car while Falls was processed; (2) King did not suspect Taylor of illegal activity so the search of her backpack was improper; (3) Taylor made incriminating statements about Reyes to King following King's illegal search of her backpack, thus King's search of Reyes' backpack was also illegal; and (4) the inevitable discovery rule does not apply.
Reyes refers to City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004), and later quotes RCW 46.20.342(c), so we presume he objects to Falls' arrest for driving while her license was suspended.
Article I, section 7 of our state constitution states: 'No person shall be disturbed in his private affairs, or his home invaded, without authority of law.' The Washington Constitution affords citizens a greater right to privacy than the Fourth Amendment of the United States Constitution. State v. Parker, 139 Wn.2d 486, 495, 987 P.2d 73 (1999) (quoting State v. Mendez, 137 Wn.2d 208, 219, 970 P.2d 722 (1999)). The right to be free from unreasonable government intrusion extends to automobiles and their contents. Parker, 139 Wn.2d at 494 (citations omitted). Warrantless searches are per se unreasonable and exceptions are narrowly drawn. Parker, 139 Wn.2d at 496. The state bears the burden of proving that the warrantless search fits within one of the exceptions. Parker, 139 Wn.2d at 496.
C. Standard of Review
We review a trial court's conclusion of law at a suppression hearing de novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). We review challenged findings of fact for substantial evidence, which is enough evidence to persuade a fair minded rational person of the truth of the finding. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002) (citations omitted). Unchallenged findings are verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). The findings must support the conclusions of law. Vickers, 148 Wn.2d at 116.
D. Search Pursuant to Falls' Arrest
King arrested Falls for driving with a suspended license third degree under RCW 46.20.289. The Washington Supreme Court subsequently found RCW 46.20.289 and .324(1) unconstitutional in City of Redmond v. Moore, 151 Wn.2d 664, 666-67, 91 P.3d 875 (2004). Reyes argues that under State v. White, 97 Wn.2d 92, 95, 640 P.2d 1061 (1982), the court's holding in Moore dictates that Falls' arrest and any subsequent search were improper.
We directly addressed this issue in State v. Carnahan, 130 Wn. App. 159, 122 P.3d 187 (2005). In Carnahan, the police arrested the defendant for driving with a suspended license. Carnahan, 130 Wn. App. at 162. A search incident to his arrest lead to the discovery of methamphetamine. Carnahan, 130 Wn. App. at 165. In upholding his conviction, we reasoned that an arrest based on probable cause is generally valid even if it is predicated on a statute later ruled unconstitutional. Carnahan, 130 Wn. App. at 162. Probable cause is based on the facts and circumstances the officer knows about at the time of the arrest. Carnahan, 130 Wn. App. at 165. And police must enforce laws until and unless they are declared unconstitutional unless the law is so 'grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.' Carnahan, 130 Wn. App. at 165 (quoting White, 97 Wn.2d at 103). We held that RCW 46.20.289 was not grossly or flagrantly unconstitutional and, therefore, upheld the search and Carnahan's conviction. Carnahan, 130 Wn. App. at 166.
Here, King had probable cause to arrest Falls because she did not have a valid driver's license. And Falls admitted to having a suspended license, which the dispatcher confirmed. Thus, under Carnahan, King had probable cause to arrest Falls, and could validly search her car incident to that arrest.
E. Seizure
Reyes argues that he was unlawfully seized when King requested he stay in the car.
Under article I, section 7 of our constitution, a person is unlawfully seized:
[O]nly when, by means of physical force or a show of authority, his or her freedom of movement is restrained and a reasonable person would not have believed he or she is (1) free to leave, given all the circumstances, or (2) free to otherwise decline an officer's request and terminate the encounter.
State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (internal citations omitted). The standard is purely objective and looks to the actions of the officer. O'Neill, 148 Wn.2d at 574.
An officer is entitled to control the scene of a traffic stop by ordering the driver to stay in the vehicle or to exit it. State v. Horrace, 144 Wn.2d 386, 393, 28 P.3d 759 (2001) (quoting Mendez, 137 Wn.2d at 220). But the officer must have an objective rationale predicated on safety concerns. Horrace, 144 Wn.2d at 393 (quoting Mendez, 137 Wn.2d at 220). When an officer stops a vehicle and makes an arrest he has an objective basis to ensure his safety by controlling the scene. Horrace, 144 Wn.2d at 393 (quoting Parker, 139 Wn.3d at 502). Other factors may support an officer's efforts to reasonably control the scene, including (1) the number of officers at the scene; (2) the number of people in the vehicle; (3) the time of day; (4) the location of the stop; (5) the traffic at the scene; (6) the affected citizens; or (7) the officer's knowledge of the occupants. Horrace, 144 Wn.2d at 393 (quoting Mendez, 137 Wn.2d at 221). If the purpose of the officer's request is investigatory, then the officer must have an articulable suspicion of criminal activity relating to officer safety. Horrace, 144 Wn.2d at 393 (quoting Mendez, 137 Wn.2d at 220, 223).
See Terry v Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Here, Reyes fails to provide any evidence in the record that his movement or freedom were restrained. According to King's testimony, he asked Reyes and the others to stay in the car while he processed Falls. The record does not indicate that he ordered them to remain or that they were not free to walk away at any time. But even if King did order Reyes and the others to remain and they objectively believed that they were not free to go, he was entitled to do so under Horrace, because there was a sufficient basis for King to exert control over the scene. 144 Wn.2d at 393. King was the only officer at the scene, it was late at night, and he was outnumbered four to one. King had a reasonable basis to ask the passengers to remain in the car in order to ensure his safety. See, e.g., Horrace, 144 Wn.2d at 393 n. 3.
Thus, Reyes' argument that he was improperly seized when King asked him to remain in the car fails.
F. Backpack Searches
Reyes argues that King did not have authority to search the backpacks that were left in Falls' car without a warrant.
An officer may search a vehicle's passenger compartment, except for locked containers. State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986). But an officer cannot search vehicle passengers or their belongings unless the officer has an articulable suspicion that the passenger is armed or dangerous. Parker, 139 Wn.2d at 498. But even with an articulable suspicion, the officer cannot conduct a full evidentiary search; he or she is limited to a search for weapons. Parker, 139 Wn.2d at 499.
Where an individual is arrested for a suspended license, there is no evidence of the crime to be hidden or lost, thus the officer cannot search to discover and preserve evidence. State v. Parker, 139 Wn.2d 486, 502, 987 P.2d 73 (1999).
To determine whether an item or article in a car belongs to a passenger, thereby protecting it from search, the Washington Supreme Court adopted the 'clearly and closely' associated test set forth in Houghton v. State, 956 P.2d 363, 370 (Wyo. 1998), rev'd, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999) (Stevens, J. dissenting); Parker, 139 Wn.2d at 503. In Houghton, the Wyoming court held that police officers may assume that all containers in the car may be searched, unless officers know or should have known that the container is a personal effect of a passenger who is not independently suspected of criminal activity. Parker, 139 Wn.2d at 503; Houghton, 956 P.2d at 370. Here, King could not have searched the backpacks if he knew, or should have known, that they belonged to the passengers unless he had an articulable suspicion of the passenger's threat to his safety. State v. Larson, 88 Wn. App. 849, 855-56, 946 P.2d 1212 (1997) (quoting State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986)).
In Parker, our Supreme Court adopted the Wyoming rule and disagreed with the United States Supreme Court's rejection of the Wyoming standard in Houghton v. State, 956 P.2d 363 (Wyo. 1998), rev'd, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999) (Stevens, J. dissenting). The Parker court held that article I, section 7 of the Washington constitution requires a particularized basis to search. Parker, 139 Wn.2d at 503 n. 7.
When King returned to search the car after Falls' arrest, both backpacks were unlocked and had no identification indicating ownership. None of the car's occupants had claimed them or removed them from the car when they got out. And even though one of the backpacks was between Taylor's legs and the other was between Reyes' legs, there is no evidence that they were not within the reach of or possessed by one of the others. Reyes offers no evidence that King actually knew who, among the four people in the car, owned the backpacks. He simply picked up Taylor's first.
Reyes argues that since Taylor's incriminating statements about him occurred after King illegally searched her backpack, her statements fall under the 'fruits of the poisonous tree' rule, which states that where an initial unlawful search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).
We do not conclude that King's search of Taylor's backpack was illegal, but even if it had been, evidence may be admitted if it is sufficiently attenuated from the original illegality. State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995). The evidence can also be admitted if there was an independent source of the evidence. Warner, 125 Wn.2d at 888.
The evidence in Reyes' backpack is admissible if the State can prove by a preponderance of the evidence that the gun and the methamphetamine in that backpack would have been discovered even without Taylor's statement. Warner, 125 Wn.2d at 889. Under the inevitable discovery rule, the State must prove by a preponderance of the evidence that the evidence in question would inevitably have been discovered using lawful methods. O'Neill, 148 Wn.2d at 591. The state must satisfy a three-prong test:
(1) The police did not act unreasonably or to accelerate the discovery of the evidence in question; (2) proper and predictable investigatory procedures would have been utilized; and (3) those procedures would have inevitably resulted in the discovery of the evidence in question.
State v. Reyes, 98 Wn. App. 923, 927, 993 P.2d 921 (2000) (quoting State v. Broadnax, 98 Wn.2d 289, 309, 654 P.2d 96 (1982)) (Dolliver, J., dissenting).
Here, Reyes denied that the remaining backpack belonged to him, and it was unidentified, thus, King could search it incident to Falls' arrest.
Furthermore, when King returned to the car after arresting Taylor, he saw bullets on the floor in the backseat area. Once King saw the bullets, he could search based on an articulable suspicion that a passenger was armed and dangerous. Parker, 139 Wn.2d at 498. The United States Supreme Court established that a valid exception to the warrant requirement exists where (1) the initial stop was legitimate; (2) a reasonable safety concern exists to justify a protective search; and (3) the scope of the search is limited to its protective purpose. State v. Collins,121 W.2d 168, 173, 847 P.2d 919 (1993). 'A reasonable safety concern exists, and a protective frisk for weapons is justified when an officer can point to 'specific and articulable facts' which create an objectively reasonable belief that a suspect is 'armed and presently dangerous." Collins, 121 Wn2d at 173 (quoting Terry v. Ohio, 392 U.S. 1, 21-24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
Here, it is undisputed that the original stop was based on Falls' defective license plate light. Thus, the first prong of the test is satisfied. Second, when King saw the bullets in the back floor area, he had a reasonable safety concern sufficient to justify a protective search for weapons in the vehicle and remaining backpack that no one claimed. Furthermore, King could reasonably anticipate that either Reyes or the other unidentified passenger would return to the vehicle after Falls' and Taylor's arrests. Finally, King limited his search to the backpack that was near the bullets. Thus, his protective search to discover whether a gun was in the backpack was not unreasonably intrusive. See, e.g., Larson, 88 Wn. App. at 855-56.
The evidence in Reyes' backpack was admissible as product of a warrantless search under Terry for officer safety. Its discovery was inevitable in the ordinary course of an officer taking reasonable safety precautions in response to seeing bullets near the backpack. Therefore, the evidence was admissible under the inevitable discovery rule and the trial court did not err in admitting it. See, e.g., Warner, 125 Wn.2d at 889.
We affirm.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, C.J., Concur.