Opinion
Nos. 27543-1-II consolidated 29798-1-II.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 00-1-05555-4. Judgment or order under review. Date filed: 06/26/2001.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Jeffrey Tamblin appeals his conviction of one count of unlawful methamphetamine manufacture and one count of unlawful methamphetamine possession, arguing that the trial court erred in denying his motions to suppress evidence and his confession. He also raises other issues pro se and in a consolidated personal restraint petition. We affirm the conviction and deny the personal restraint petition.
FACTS
Pierce County Sheriff Deputies received a tip concerning a possible methamphetamine production lab. The deputies initially intended to check a motor home implicated by their informant, but found it fenced in. Instead, they went to an adjacent apartment belonging to Cindy Tamblin and performed a 'knock and talk' investigation. 2 Report of Proceedings (RP) (March 2, 2001) at 90.
After Cindy opened the front door, four or five individuals exited the apartment. After the door opened, Deputy Winthrop Sargent detected a chemical smell emanating from the apartment. Deputy John Ussery also detected a chemical smell coming from the clothing on the individuals exiting the apartment.
Sargent, a certified member of the Pierce County Sheriff's Department Clandestine Lab Team, recognized the odor as one associated with unlawful methamphetamine labs. After a few minutes, he put on chemical resistant gloves and a breathing apparatus and entered the apartment to perform a 'safety assessment.' 1 RP (March 1, 2001) at 18. During this assessment, the deputy discovered an active surveillance monitor in the front room with a camera facing the parking lot. When he opened a bathroom door, a cloud of fumes emanated.
He also noted that the bathroom shower was turned on. The shower stall floor contained items he commonly associated with a methamphetamine lab, including glassware, a green garden sprayer (often used as a hydrochloride gas generator), funnels, coffee filters, and an orange 'chemical soup' in a plastic laundry detergent container. 1 RP (March 1, 2002) at 21. The deputy ventilated the bathroom to dissipate the fumes.
During his safety assessment, Sargent also searched the kitchen stove, concerned that there might be a chemical reaction. Sargent did not say whether the stove was on or off. In a closed drawer under the stove, he discovered a glass cooking tray containing white residue, an electronic scale, and zip-lock baggies.
Sargent reported his observations to Deputy Curtis Beaupre, who left to obtain a search warrant. While Sargent waited outside the front door for the search warrant, Ussery questioned Tamblin and his ex-wife Cindy. He recited their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Tamblin acknowledged his rights.
Ussery questioned Tamblin about information that he had obtained from other people at the scene. At first, Tamblin maintained his innocence, insisting that his main concern was Cindy's well-being. But at some point during the investigation, his demeanor and attitude changed. He said that he would tell the deputy the truth in exchange for Cindy not being arrested and being allowed to stay with their children.
At a later hearing, Ussery testified that 'then I told him, I said, you know she may not go to jail, something to the effect of, you know, I can't make promises what the prosecutor will do, but she'll be listed in the report, but she may or may not be going to jail tonight, probably not.' 2 RP (March 2, 2002) at 78. After this conversation, Tamblin agreed to write a confession. According to Ussery, he decided not to arrest Cindy because she had been 'instrumental' in providing them with evidence and statements that corroborated what the deputies already knew about the methamphetamine lab and because he was concerned about the children. 1 RP (March 1, 2002) at 85.
In his confession, Tamblin stated that he helped move the methamphetamine lab into Cindy's apartment. As he began setting up the lab, the deputies knocked on the door. He put the materials in the shower to hide the smell.
The State charged Tamblin with unlawful methamphetamine manufacturing and unlawful methamphetamine possession. He moved to suppress his custodial statement, arguing that it was coerced. He also moved to suppress evidence obtained during Sargent's safety assessment, arguing that no emergency justified the warrantless search or that the search exceeded its permissible scope. The trial court denied both motions.
The court arraigned Tamblin on November 20, 2000. On January 24, 2001, January 31, 2001, February 1, 2001, February 5, 2001, February 28, 2001, and March 8, 2001, the court continued Tamblin's trial date because the prosecutor was in trial on another matter. On January 18, 2001, and February 6, 2001, the trial court granted the defendant's motions for a continuance.
The matter was tried to a jury. At the close of evidence, Tamblin moved for reconsideration of the trial court's denial of his motion to suppress, arguing that the search exceeded the scope permitted in an emergency. The trial court denied the motion.
The jury convicted Tamblin as charged. After trial, he moved to dismiss or, in the alternative, for relief from judgment based on prosecutorial mismanagement resulting in speedy trial violations. He also moved for an extension of time to file a motion to dismiss based on insufficiency of the evidence and ineffective assistance of counsel. The State countered that Tamblin's motion for relief from judgment was untimely. The trial court denied the motion to dismiss. It also denied his motion for relief from judgment as untimely under CrR 7.6. He appeals.
ANALYSIS Motion to Suppress Evidence
Tamblin first contends that the trial court erred in denying his motion to suppress evidence because no emergency justified a warrantless entry. He further asserts that even if the entry was justified, the search exceeded its permissible scope.
We review the trial court's decision to deny a motion to suppress evidence for abuse of discretion. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). A court abuses its discretion when it exercises it on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
We review a trial court order denying suppression to determine whether substantial evidence supports its findings of fact and whether they, in turn, support its conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is that sufficient to persuade a fair-minded, rational person of a finding's truth. Hill, 123 Wn.2d at 644.
Tamblin assigns error to the court's findings of fact 6, 7, and 8 and conclusions of law 1-15. He argues that the emergency doctrine does not apply because the circumstances at the apartment did not rise to the level of emergency under State v. Downey, 53 Wn. App. 543, 768 P.2d 502 (1989). He asserts that when Sargent entered the apartment, no one remained inside the apartment and no emergency remained.
Tamblin challenges the trial courts findings:
6. Inside the apartment, Deputy [Sargent] noticed a 'gas cloud' he associated with recent chemical reaction in the shower stall of the bathroom. Also inside the bathroom were other items commonly associated with clandestine methamphetamine production including glassware, a funnel, coffee filters with a brown sludge, glass tray with white residue, a garden sprayer, and a bucket with an amber colored liquid. Deputy Sargent opened some windows to allow the apartment to ventilate and reduce the risk of noxious fumes.
7. Deputy [Sargent] searched the kitchen stove area because based on his training and experience a stove is often used as a heat source for methamphetamine manufacturing and could possibly pose a risk of explosion. Inside the bottom closed stove drawer, Deputy [Sargent] located a glass tray with white residue, empty plastic baggies and a digital scale.
8. After Mrs. Tamblin [was] detained and advised of her Miranda rights, she stated that there was a methamphetamine laboratory in the bathroom of the apartment.
CP at 119-120. Tamblin assigns error to the trial court's conclusions of law 1-15. We set forth those conclusions pertinent to the suppression motion:
1. Deputy Sargent entered the apartment for the limited purpose of conducting a safety assessment.
2. Deputy Sargent's initial entry into the apartment was lawful under the emergency doctrine. Deputy Sargent, who was a certified member of the Pierce County Clandestine Laboratory Team, had reason to believe there was an active and dangerous methamphetamine laboratory in the apartment.
3. Deputy Sargent's belief was reasonable under the emergency doctrine because of the information other officers had obtained from [the informant], his observance of the surveillance camera outside the apartment, the strong chemical odor coming from the apartment door, the chemical odor from the people exiting the door, and the statements some of these people had made regarding an 'active meth lab' located inside the apartment.
4. As part of his safety assessment, Deputy Sargent lawfully entered the apartment, ventilated the bathroom where he had discovered a 'gas cloud', and determined that no heat source (the stove in the kitchen) posed a threat of explosion.
5. Deputy Sargent's safety concerns were further supported by what he believed was a chemical reaction that had produced the gas cloud which presented a potential hazard because someone could be overcome by the fumes or the fumes could present a hazard of explosion.
6. Deputy Sargent['s] warrantless search of the kitchen stove and the stove drawer was within the scope of the safety check of the premises when he searched the stove and the stove drawer for active laboratory chemicals or components.
. . . .
10. Deputy Sargent obtained additional information when he conducted a safety assessment of the apartment and discovered a 'gas cloud', glassware, and suspected methamphetamine residues and suspected precursor chemicals in the apartment.
CP at 121-23.
Tamblin also argues that Sargent waited almost 30 minutes before entering, indicating that he did not believe an emergency existed. But at the suppression hearing, the deputy testified that he waited a few minutes to enter the apartment.
Although courts consider a warrantless search per se unreasonable, an emergency may justify it. Downey, 53 Wn. App. at 544. When a residence contains persons in imminent danger of death or harm; objects likely to burn, explode or otherwise cause harm; or information that will disclose the location of a threatened victim or the existence of such a threat, a law enforcement officer may search the residence without first obtaining a warrant. Downey, 53 Wn. App. at 544-45. To justify a warrantless search based on an emergency, the State must show that '(1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency existed.' Downey, 53 Wn. App. at 545.
Here, Sargent smelled an odor that he associated with methamphetamine labs, corroborated by those who left the apartment. He then made a safety assessment of the apartment. He testified that methamphetamine labs pose a danger not only to the people around it but also to the public nearby due to hazardous chemicals and potentially dangerous chemical reactions. Here, a reasonable person could conclude that an unchecked lab posed a hazard to those in the surrounding apartments.
Tamblin also asserts that even if the entry was justified, Sargent exceeded its permissible scope when he looked in the closed stove drawer. Thus, he argues that trial court erred in concluding that 'the warrantless search of the kitchen stove and stove drawer was within the scope of the safety check of the premises when [Deputy Sargent] searched the stove and the stove drawer for active laboratory chemicals or components.' Clerk's Papers (CP) at 122. We agree. Officers conducting a search under the emergency exception may not exceed 'the scope of a reasonable search to effectuate the purpose of the entry.' State v. Bakke, 44 Wn. App. 830, 841, 723 P.2d 534 (1986), review denied, 107 Wn.2d 1033 (1987). Here, searching a closed drawer in a stove, which no one testified was on, exceeded the scope of an emergency search.
Nevertheless, we conclude that the error was harmless. The evidence Sargent found in the shower (glassware, green garden sprayer often used as a hydrochloride gas generator, funnels, coffee filters, and orange 'chemical soup' in a plastic laundry detergent container) sufficiently supported obtaining the search warrant.
Moreover, the inevitable discovery rule also applies here. State v. Richman, 85 Wn. App. 568, 572-73, 933 P.2d 1088, review denied, 133 Wn.2d 1028 (1997) (unlawfully obtained evidence is admissible if the State can prove that the police did not act unreasonably or attempt to accelerate discovery, and it would have inevitably discovered the evidence through proper and predictable investigatory procedures).
Motion to Suppress Custodial Statements
Tamblin next contends that the trial court erred in denying a motion to suppress his custodial statement because he made it in response to a direct or implied coercive promise that the deputies would not arrest Cindy.
We review the denial of a motion to suppress after a CrR 3.5 hearing to determine whether substantial evidence exists to support the trial court's challenged findings of fact and whether those findings support the trial court's conclusions of law. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). We defer credibility determinations to the fact finder and we do not disturb them on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In response to a Cr 3.5 motion, the State must prove by a preponderance of the evidence that the confession was voluntary. State v. Robtoy, 98 Wn.2d 30, 35-36, 653 P.2d 284 (1982). A court determines voluntariness under the totality of the circumstances, including any promises or misrepresentations the interrogating officers made and the causal relationship between those promises and the confession to determine whether the defendant's will was overborne. Broadaway, 133 Wn.2d at 132.
Ussery testified that he advised Tamblin of his Miranda rights and that Tamblin acknowledged he understood those rights. At first, Tamblin maintained his innocence, but at some point his demeanor and attitude changed and he says that he agreed to confess in exchange for Cindy not being arrested. The deputy said that he did not make any specific promises to Tamblin about whether Cindy was going to jail that night.
Tamblin testified that Ussery told him that Cindy would be freed if he signed a confession. He also stated that the deputy threatened to take away his children if he did not confess. Tamblin asserts that he wrote the confession under this pressure.
Faced with this conflicting testimony, the trial court chose to believe the deputy when it found that Tamblin's testimony was not 'particularly credible' and found that the deputy was credible. CP at 126. We will not disturb those findings on appeal. The trial court did not err in denying Tamblin's motion to suppress his custodial statement.
Pro Se Issues Speedy Trial
Tamblin also raises various pro se issues. First, he argues that the trial court violated his right to a speedy trial when it granted multiple continuances.
'A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment.' Former CrR 3.3(c)(1) (2003).
A trial court may properly grant a continuance beyond the speedy trial period based on counsel's unavailability. Former CrR 3.3(d)(8) (2003); State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996); see also State v. Cannon, 130 Wn.2d 313, 922 P.2d 1293 (1996); State v. Williams, 104 Wn. App. 516, 17 P.3d 648 (2001).
The trial court arraigned Tamblin on November 20, 2000, and set a January 18, 2001 trial. The court continued the trial date seven times based on the prosecutor's unavailability, an acceptable ground, or at the defendant's request. Tamblin's argument fails.
Prosecutorial Mismanagement
Tamblin also argues that the trial court erred in failing to dismiss the charges against him because his right to a fair and impartial trial was prejudiced due to prosecutorial mismanagement. First, he asserts that the State caused unnecessary delay through numerous continuances. Next, Tamblin asserts that he was prejudiced because the State incorrectly stated the cause number and the arraignment date and conviction date in its reply to his motion to dismiss. Finally, Tamblin asserts that this prosecutorial misconduct comprised a knowing and willful CR 11 violation.
We review a trial court's right to dismiss charges under the manifest abuse of discretion standard. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997). A court may dismiss a criminal prosecution due to arbitrary action or governmental misconduct when the rights of the accused are prejudiced to materially affect his or her right to a fair trial. CrR 8.3(b). To justify a CrR 8.3(b) dismissal, the defendant must show (1) arbitrary action or governmental misconduct and (2) prejudice affecting his right to a fair trial. Michielli, 132 Wn.2d at 239-40.
Governmental misconduct need not be of an evil or dishonest nature; simple mismanagement may suffice. Michielli, 132 Wn.2d at 239-40. Prejudice may include violating the right to a speedy trial. Michielli, 132 Wn.2d at 239-40.
As we already noted, the State did not violate Tamblin's speedy trial right. And he fails to show how the State adversely affected his right to a fair trial. Although the State incorrectly cited Tamblin's cause number, arraignment date, and conviction date in its reply to his motion, we fail to see how such minor clerical errors arise to misconduct or mismanagement. And Tamblin provides no factual support for his assertion that the State's clerical errors were knowing and willful, rising to a CR 11 violation.
Tamblin's argument fails. Compulsory Process
Tamblin further argues that he was denied his right to present three witnesses, in violation of his Sixth Amendment right to present a defense. Tamblin fails to sufficiently brief this issue and we decline to review it. See In the Matter of Roser, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) ('[N]aked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.') (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)).
Personal Restraint Petition
In his personal restraint petition, Tamblin repeats his speedy trial argument. He also asserts that he received ineffective assistance of counsel.
We have already addressed his speedy trial argument. And as to his ineffective assistance of counsel claim, he fails to support his claims through proper affidavits and evidence to support them. In the Matter of the Personal Restraint Petition of Connick, 144 Wn.2d 442, 463, 28 P.3d 729 (2001) (failure to provide sufficient evidence to support a claim of ineffective assistance of counsel results in failure of that claim).
We affirm the conviction and deny the personal restraint petition.
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.
SEINFELD, J. and HUNT, C.J., concur.