Opinion
No. 61216-6-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-01095-8, Steven J. Mura, J., entered January 31, 2008.
Affirmed in part and remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION
Donald Duchene appeals his conviction for unlawful possession of a controlled substance, methamphetamine. Duchene contends that (1) the record does not reflect Duchene knowingly, intelligently, and voluntarily waived his constitutional right to a jury trial and (2) the methamphetamine is inadmissible because the search was not justified and exceeded the scope of a frisk for weapons. Because the record does not reflect a valid waiver of the right to a jury trial, the State concedes the conviction must be reversed and the case remanded for a new trial. But because the search was justified and the seizure was valid under the "plain view" exception, we affirm the trial court's decision denying Duchene's motion to suppress the methamphetamine.
FACTS
On July 26, 2007, a Whatcom County deputy sheriff, Magnus Gervol, was seeking to execute a felony warrant on Todd Hamilton and was parked in an area frequented by Hamilton. Deputy Gervol knew Hamilton was associated with a Ford Explorer. While Deputy Gervol was waiting, a Ford Explorer drove by Deputy Gervol and turned into the driveway of an uninhabited house that was under construction. Deputy Gervol pulled into the driveway. A man got out of the Ford Explorer. Deputy Gervol recognized the man as Donald Duchene. Deputy Gervol knew that Duchene had driven in the past without a valid driver's license and had previously fled from the police. Deputy Duchene asked Duchene whether he had a driver's license. Duchene said, "No, it is suspended" and that he did not have identification with him. Deputy Gervold testified that he decided to detain Duchene until he could verify the status of his driver's license.
As Deputy Gervol approached Duchene, he saw a knife clipped to the front right pocket of Duchene's baggy shorts. Deputy Gervol put Duchene in handcuffs, advised Duchene of his Miranda rights, and removed the knife from Duchene's right pocket. While patting down Duchene to make sure he did not have any other weapons, Deputy Gervol saw a plastic baggy that was clearly visible in his left pocket with "a crystal substance" that Deputy Gervol "recognized as methamphetamine." Deputy Gervol asked Duchene what was in the baggy. Duchene answered, "Meth." The baggy contained approximately 11 grams of methamphetamine, about the size of ten sugar packets.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The State charged Duchene with unlawful possession of a controlled substance. Duchene filed a motion to suppress "all evidence obtained during the warrantless arrest and search of defendant's person."
At the 3.6 hearing, Deputy Gervol testified that he knew that Duchene had a prior criminal history, that Duchene had fled from law enforcement in the past, and that he had a history of driving without a license. Deputy Gervol stated that after he removed the knife from Duchene's right pocket, he looked on Duchene's left side to see if he had another knife and that was when he saw the methamphetamine in Duchene's open pant's pocket. Deputy Gervol said that he was surprised to find the methamphetamine because in his career as a deputy sheriff, he had never found evidence that way before.
The court denied Duchene's motion to suppress. The court ruled that Deputy Gervol had justification to detain Duchene and that the methamphetamine was lawfully seized because the methamphetamine was in plain view.
In the stipulated bench trial, the court reviewed the police reports and found Duchene guilty of possession of a controlled substance, methamphetamine. Duchene appeals.
DECISION
Because the record does not reflect a valid waiver of Duchene's constitutional right to a jury trial, the State concedes his conviction must be reversed and the case remanded for a new trial. A defendant's waiver of the constitutional right to a jury trial must be voluntary, knowing, and intelligent. City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984). The waiver of the right to a jury trial "cannot be assumed from a silent record even though the defendant was represented by counsel." City of Seattle v. Crumrine, 98 Wn.2d 62, 65, 653 P.2d 605 (1982).
Duchene contends the evidence of methamphetamine is inadmissible on remand because the court erred in denying his motion to suppress the methamphetamine. On an appeal of a denial of a motion to suppress, we review the findings for substantial evidence. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). Substantial evidence is sufficient evidence to persuade a rational, fair-minded person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). If a defendant does not assign error to the findings of fact, we review de novo whether the findings support the trial court's conclusions of law. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
Except for a portion of finding of fact No. 8 that provides, "Deputy Gervol immediately recognized Mr. Duchene from prior incident," Duchene does not challenge the other findings. Unchallenged findings are verities on appeal. O'Neill, 148 Wn.2d at 571. As to the challenged portion of finding of fact No. 8, there is sufficient evidence in the record to support the finding. At the 3.6 hearing, Deputy Gervol testified that although he had not had personal contact with Duchene, he recognized Duchene when he saw Duchene get out of his car, he knew about his prior criminal history, and that he had previously fled from the police.
Duchene contends that Deputy Gervol was not justified in continuing the pat down search for weapons after placing Duchene in handcuffs and seizing the knife. An officer may frisk a suspect for weapons if: "(1) he justifiably stopped the person before the frisk, (2) he has a reasonable concern of danger, and (3) the frisk's scope is limited to finding weapons. The failure of any of these makes the frisk unlawful and the evidence seized inadmissible." State v. Setterstrom, 163 Wn.2d 621, 626, 183 P.3d 1075 (2008). "[C]ourts are reluctant to substitute their judgment for that of police officers in the field." State v. Belieu, 112 Wn.2d 587, 601, 773 P.2d 46 (1989).
There is no dispute that Deputy Gervol justifiably stopped Duchene. Duchene does not challenge the finding that "Deputy Gervol had a reasonable and articulable suspicion to detain Mr. Duchene." Duchene relies on Setterstrom, 163 Wn.2d 621, to argue that Deputy Gervol did not have a reasonable concern of danger once he seized Duchene's knife. Setterstrom is distinguishable. In Setterstrom, the court concluded that the officer did not have a reasonable belief that Setterstrom was armed and presently dangerous when he was sitting in a public area of a DSHS building, filling out a benefits form. Setterstrom, 163 Wn.2d at 626-27. Here, Deputy Gervol testified that he was concerned that Duchene might have another weapon because of his history of running from law enforcement when wanted for committing other crimes. Deputy Gervol proceeded to frisk Duchene after seizing the knife because in his experience, "people who carry one knife or weapon carry two or three. . . ." Unlike the officer in Setterstrom, Deputy Gervol had a reasonable concern of danger and was justified in continuing the pat down of Duchene.
Even if the part down search was justified, Duchene argues that Deputy Gervol exceeded the scope of the search by looking in Duchene's pocket. Warrantless searches and seizures violate the Fourth Amendment and article I, section 7 of the Washington State Constitution. Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). The "plain view" doctrine is an exception to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).
There is no support in the record for Duchene's assertion that Deputy Gervol exceeded the scope of a constitutional pat down for weapons by looking in Duchene's pocket. It is an undisputed finding of fact that "[t]he methamphetamine was in plain view on Mr. Duchene's person during the lawful detainment of Mr. Duchene." Under the "plain view" exception to the warrant requirement, the officer must have "had a prior justification for the intrusion and immediately recognized what is found as incriminating evidence such as contraband, stolen property, or other item useful as evidence of a crime." O'Neill, 148 Wn.2d at 583. In addition, the officer must have discovered the incriminating evidence inadvertently. State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307 (2005).
Here, Deputy Gervol had a prior justification for the frisk, he discovered the evidence inadvertently, and he immediately recognized it as incriminating evidence. Deputy Gervol's testimony at the 3.6 hearing shows that Duchene had a plastic baggy with 11 grams of methamphetamine in the front left pocket of his baggy shorts that was clearly visible. The record also supports the conclusion that Deputy Gervol discovered this evidence inadvertently while searching for weapons, and from his training and experience, recognized the substance as methamphetamine. On this record, the trial court did err in denying the motion to suppress and admitting the methamphetamine.
We remand for a new trial, but affirm the trial court's decision denying the motion to suppress evidence obtained subsequent to the warrantless search.