Opinion
No. 28520-7-II
Filed: August 24, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-02746-0. Judgment or order under review. Date filed: 03/01/2002. Judge signing: Hon. Frank E Cuthbertson.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Dan N III Fiorito, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 109, Tacoma, WA 98402-2163.
Robert Leslie Hickey appeals a conviction for attempted second degree rape. He argues that the trial court erred by denying his motion to suppress and that the evidence was insufficient to support his conviction. We affirm.
On the evening of May 14, 2001, Sabriye Morse was walking home from church when a white pick-up truck with a white canopy went by three times. The third time, the truck stopped and its driver, a man, asked if she wanted a ride. Morse declined, and the man drove off.
As Morse approached a bridge, she saw the same truck, now parked. She then realized that the man who had been driving it was walking behind her. When the man asked for a cigarette, she said to leave her alone. When she crossed the street, the man followed and pushed her down a hill. She dropped her keys but held onto her cell phone.
At the bottom of the hill, the man got on top of Morse, squeezed one of her breasts, and said he would kill her if she made any noise. She tried to dial 911 on her cell phone, but the man grabbed it and again threatened to kill her. He ran up the hill while looking back at the phone, after which Morse went to a nearby apartment for help.
Pierce County Deputies Wulick and Newman responded. They found Morse hysterical and covered with mud, yet able to describe her attacker and his truck. They retraced her steps, found her keys, and took her home.
The deputies then began searching for a white pickup with a white canopy. They soon located one parked in front of an apartment complex near Morse's church. By running its license through records, they learned that Hickey owned it and lived in the apartment complex. They observed that rainwater had not beaded up on the truck, as it had on the other vehicles parked nearby, and that the truck's hood was still warm. Using a flashlight to look through the truck's windows, they saw muddy footprints on the driver's side floorboard.
The deputies went to Hickey's apartment and knocked. Hickey answered, dressed only in underwear and a shirt. He seemed wet, and he matched the description Morse had given of her assailant. Wulick said that suspicious activity possibly involving the truck had been reported near I-5 and North Thorne. Hickey said that he had stopped there `to take a pee in the woods' as he was returning from his mother's house on Woodbrook Drive. Wulick pointed out that Woodbrook Drive was in the opposite direction, and Hickey added that he had also gone to a gas station to put air in his tires. Hickey explained that he was wet and not fully dressed because he had just taken a shower.
6 Report of Proceedings (RP) at 297.
Hickey and the deputies went out to the patrol car, where he was read and said that he understood his Miranda rights. After initially denying that he had talked to anyone along the road, he admitted that he had asked a woman for a cigarette and that he might have tried to fondle her. He also said he had `tackled her' and grabbed her cell phone. He said that the clothes he had been wearing were on the floor of his apartment, and he agreed to show the deputies. He and the deputies then re-entered his apartment, where he motioned to his clothes and told his girlfriend he had `screwed up.'
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6 RP at 303.
6 RP at 307.
Another deputy brought Morse to Hickey's apartment, where she looked at him and his truck. She identified his pick-up as the one her assailant had been driving. She thought that Hickey looked like her assailant, but she could not be sure because he was wearing different clothes.
The State charged Hickey with attempted second degree rape or, in the alternative, with indecent liberties. Hickey moved to suppress his clothing and his statements. He argued that the searches of his truck and apartment had been unlawful, that his arrest had been unlawful, and that he had not waived his Miranda rights.
The trial court denied the motion to suppress. It ruled orally that Hickey's right to privacy was not violated when the deputies ran the plate of his truck and looked inside, that the deputies' pre-Miranda questions were noncustodial, that Hickey had waived his Miranda rights, and that Hickey had voluntarily consented to a limited search of his house. Much later, it entered written findings of fact and conclusions of law.
At trial, Wulick, Newman, and Morse testified as set forth above, except that Morse more positively identified Hickey as her assailant. Hickey was found guilty and sentenced to life without parole.
Hickey had previously been convicted of a sex offense that constituted a `strike.'
I. Findings and Conclusions
Preliminarily, Hickey claims that the trial court erred in entering its findings and conclusions. We address its CrR 3.6 findings first and its CrR 3.5 findings second.
A.
According to Hickey, several of the court's written findings erroneously included details elicited at trial rather than at the 3.6 hearing. He points to findings that state (1) the address to which the deputies responded and the fact that they were responding to a 911 call; (2) that they arrived five minutes after the call and contacted Morse at the residence; (3) that Morse was wearing blue jeans and a grey blouse; and (4) that the deputies drove Morse home after the incident. The State concedes that these details were produced only at trial but claims that none of them could have affected the trial court's rulings. Agreeing with the State, we hold that any error was harmless beyond a reasonable doubt.
According to Hickey, the trial court erroneously found that Morse replied `no' to Hickey's inquiries about whether she wanted a ride and a cigarette. This finding is supported by Deputy Newman's testimony.
See 3 RP at 109.
According to Hickey, the trial court's findings erroneously fail to state that his truck was on private property when the deputies located it. But the deputies testified the truck was parked in an apartment complex's parking lot, and Finding 8 includes that fact.
According to Hickey, the trial court's conclusions of law erroneously fail to address the warrantless search of his vehicle. The parties argued that issue, and the trial court addressed it in the court's oral ruling. The record is sufficient to permit review, and the court's failure to enter a written conclusion does not warrant reversal or remand
B.
According to Hickey, the trial court erred by not finding as fact (1) that the deputies initially contacted him inside his home; (2) that he was arrested without a warrant before he was taken to the patrol car; and (3) that he was not advised of his right to refuse consent before he and the deputies reentered his apartment to retrieve his clothes. Disagreeing, we observe (1) that the trial court's 3.5 findings incorporated its 3.6 findings, and that its 3.6 findings stated that Hickey's pre-Miranda statements occurred inside his home; (2) that whether the police made a warrantless arrest is a conclusion of law on which the trial court was not obligated to make a finding of fact; and (3) that in one of its 3.6 conclusions, which we will treat as a finding of fact, the trial court stated that the deputies had not advised Hickey that he had a right to refuse consent to search his apartment.
According to Hickey, the trial court's CrR 3.5 conclusions are incomplete because they do not discuss the warrantless search of his truck and his warrantless arrest. Assuming without holding that he is correct, the record is sufficiently developed to permit review.
State v. Smith, 76 Wn. App. 9, 16-17, 882 P.2d 190 (1994), review denied, 126 Wn.2d 1003 (1995).
II.
Hickey argues that the trial court erred by denying his motion to suppress. He claims (A) that the police unlawfully approached and looked into his truck without a warrant; (B) that the police unlawfully arrested him in his home without a warrant; and (C) that the police unlawfully entered his apartment and seized his clothes.
A.
Hickey first claims that the police unlawfully approached and looked into his truck without a warrant. We disagree. The police do not perform a search or seizure merely because they observe what is in open view (as opposed to what is surrounded by a reasonable expectation of privacy). A vehicle is generally in open view when it is parked in an area shared by many tenants of an apartment complex. The contents of a vehicle are generally in open view when one looking from a lawful vantage point can see them with or without the reasonable use of a flashlight. When Deputies Wulick and Newman approached and looked into Hickey's truck from their lawful vantage point, they were not performing a search or acting unlawfully.
State v. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986); State v. Seagull, 95 Wn.2d. 898, 901, 632 P.2d 44 (1981).
United States v. Soliz, 129 F.3d 499, 502-03 (9th Cir. 1997), reversed on other grounds, United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (no reasonable expectation in apartment parking lot); see also, State v. Niedergang, 43 Wn. App. 656, 662, 719 P.2d 576 (1986); State v. Coburne, 10 Wn. App. 298, 314, 518 P.2d 747 (1973), review denied, 83 Wn.2d 1015 (1974).
State v. Campbell, 103 Wn.2d 1, 23, 691 P.2d 929 (1984) (officer's observation through car window `falls squarely under the open view doctrine'), cert. denied, 471 U.S. 1094 (1985); State v. Herzog, 73 Wn. App. 34, 52, 867 P.2d 648, review denied, 124 Wn.2d 1022 (1994).
State v. Lemus, 103 Wn. App. 94, 103, 11 P.3d 326 (2000) (officer's use of flashlight to see car's interior did not turn the observation into an intrusive method of viewing).
B.
Hickey next claims that the police unlawfully arrested him in his home without a warrant. He does not contest, nor could he contest, that the police acquired probable cause while speaking with Hickey `just inside' his front door. Nor does he dispute that the police were `invited in.' He claims only that police who have been invited into a home may not make a warrantless arrest while in the home, even if they acquire probable cause to arrest while there. In essence, he asks us to conflate the situation in which the police forcibly enter a home to make a warrantless arrest and the situation in which, as here, the police are consensually inside a home when they acquire probable cause to arrest. In the latter situation, however, the police should be able to proceed in the same manner as if they were not in a home, since a warrantless arrest will not intrude on privacy in any way that has not already been consented to. For at least this reason, we reject Hickey's second claim.
Clerk's Papers (CP) at 91.
See 3 RP at 91, a page that Hickey cites and relies on. Br. of Appellant at 30.
See Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Griffith, 61 Wn. App. 35, 40-41, 808 P.2d 1171, review denied, 117 Wn.2d 1009 (1991).
Although we have analyzed Hickey's claim on its merits, we doubt that the police made an arrest while in his home. They acquired probable cause while in his home, and they may have formed a subjective intent to arrest him at that time. But they did not arrest him until they objectively manifested that intent, which seems to have occurred after they and Hickey went out to the patrol car. See State v. Young, 135 Wn.2d 498, 501, 510, 957 P.2d 681 (1998) (Washington's test for arrest `is a purely objective one'; person is `seized' for Fourth Amendment purposes `only when, by means of physical force or a show of authority, his freedom of movement is restrained); State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003); State v. Rehn, 117 Wn. App. 142, 148, 69 P.3d 379 (2003).
This also disposes of Hickey's claim that his counsel rendered ineffective assistance by not arguing that he was unlawfully arrested in his home. He must show prejudice to sustain such a claim, State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995), aff'd, 161 F.3d 13 (9th Cir. 1998), and he cannot do that here.
C.
Hickey also claims that the police unlawfully entered his apartment and seized his clothes. Citing State v. Ferrier, he reasons that when the deputies asked for consent to re-enter his home to get his clothes, they were required to tell him, but failed to tell him, that he had the right to refuse consent.
136 Wn.2d 103, 960 P.2d 927 (1998).
Ferrier applies in the so-called `knock-and-talk' situation i.e., when officers suspect (but lack probable cause to believe) that a crime is occurring in a home, so they seek consent to search that home. Ferrier does not apply when officers seek consent to enter a home for the purpose of investigating a crime that has already occurred elsewhere. This case is of the latter type, Ferrier does not apply, and the record shows that Hickey voluntarily consented to both entries that the officers made.
State v. Khounvichai, 149 Wn.2d 557, 563, 69 P.3d 862 (2003).
Khounvichai, 149 Wn.2d at 563-64; State v. Tagas, Wn. App., 90 P.3d 1088, 1091 (2004).
III.
Hickey argues that the evidence is insufficient to support the conviction. Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. Credibility determinations are for the trier of fact. To support a conviction for attempted second degree rape, the evidence must show that the defendant took a substantial step toward second degree rape, and that he did so with intent to commit second degree rape.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Jackson, 62 Wn. App. 53, 55-56, 813 P.2d 156 (1991).
Hickey claims that the evidence is insufficient to show identity. Morse tentatively identified him soon after his arrest. She identified him more definitely at trial. She was corroborated by his own statements. Viewed favorably to the State, this evidence is sufficient to show identity.
Hickey claims that the evidence is insufficient to show that he took a substantial step toward second degree rape. Morse testified that Hickey drove by her three times and contacted her twice. He then knocked her to the bottom of a hill, where he pinned her arm behind her back, lay on top of her, squeezed her breast, and threatened to kill her. When he saw she was trying to use her cell phone, he ran away. Taken favorably to the State, this evidence is sufficient to show a substantial step with intent to rape.
Affirmed.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., concur.