Opinion
No. 57168-1-I.
November 20, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-02103-3, Linda C. Krese, J., entered October 24, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA.
Oliver Ross Davis, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, Everett, WA.
Affirmed by unpublished per curiam opinion.
Joseph Wayland was convicted of unlawful possession of a firearm following denial of his motion to suppress evidence. He contends the warrantless search of his backpack, retrieved from a commercial dumpster, violated his right to privacy under the federal and state constitutions. We disagree and affirm.
BACKGROUND
The events leading to Wayland's arrest are contained in the trial court's unchallenged findings in its CrR 3.6 ruling:
On October 14, 2004, the Everett Police Department received a report of an indiscriminate shooting in downtown Everett. Officer Sieverson responded to the call and spoke with a person who saw someone shoot a gun. At about the same time Officer Olmsted noticed the defendant about a block away. Officer Eviston conducted a search of the area with her police dog. The dog tracked into a nearby alley and alerted on a commercial dumpster which was in the alley. Officer Eviston and Sieverson looked in the dumpster and saw that it contained a backpack. There was nothing else in the dumpster. The backpack was soft-sided.
There was no identifying information on the exterior of the backpack. It had several zippered compartments. One of them was padlocked. Sieverson opened the unlocked compartments but found no identifying information. He felt the locked compartment and immediately determined there was a handgun in it. The backpack was taken back to the police station and Officer Olmsted opened the padlock by picking it. Inside this locked compartment was a loaded handgun and ammunition. There was also a receipt and a check made out to the defendant. Everett Police procedure would not have allowed the backpack to be impounded without removing and securing the handgun.
Officer Eviston returned to the alley and found the defendant there. The defendant told Eviston that he misplaced the backpack. The defendant was arrested and questioned but then released.
Clerk's Papers at 40-41.
Wayland was charged with unlawful possession of a firearm based on his prior felony conviction for second degree malicious mischief. Wayland sought to suppress the gun on grounds that the search was unconstitutional. The court denied the motion to suppress. A jury convicted Wayland of unlawful possession of a firearm in the second degree. Wayland appeals the CrR 3.6 ruling and the conviction.
DISCUSSION
In reviewing a ruling on a motion to suppress, we review the findings of fact for substantial evidence and the conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Wayland challenges the court's admission of the firearm, contending that the trial court erred in concluding (1) that he lacked standing to challenge the search, and (2) that search and seizure of the backpack was necessary and proper under the community caretaking function.
The trial court concluded Wayland lacked standing to challenge the search: "The defendant had no expectation of privacy in the alley dumpster. He had no proprietary interest in the dumpster. Thus he has no standing to complain about the search of the backpack and the entire search was legal." Clerk's Papers at 41. The court's conclusion ruled out Wayland's standing both under the traditional rule requiring ownership of the area or item searched, and under Washington's automatic standing rule.
As to traditional standing, Wayland does not assert any ownership interest in the dumpster. The court's conclusion is a proper application of the rule stated in State v. Hepton, 113 Wn. App. 673, 680, 54 P.3d 233 (2002), that a defendant does not have a reasonable privacy interest in a garbage receptacle that does not belong to him. See also State v. Rodriguez, 65 Wn. App. 409, 418-19, 828 P.2d 636 (1992) (private affairs not unreasonably violated by seizure of bag found on top of pile in apartment complex dumpster); State v. Jeffries, 105 Wn.2d 398, 414, 717 P.2d 722 (1986) (search of items stored under tarps in woods lawful where "defendant could not expect to keep anybody who discovered them from looking" inside).
Under the state constitution, a defendant has automatic standing to challenge a search or seizure where (1) he is charged with an offense for which possession is an essential element and (2) he was in possession of the seized property at the time of the contested search. State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). Wayland satisfies the first requirement because possession is an essential element of the crime charged, unlawful possession of a firearm.
The second requirement may be satisfied by either actual or constructive possession. Id. at 333. "A defendant has actual possession when he or she has physical custody of the item and constructive possession if he or she has dominion and control over the item. Dominion and control means that the object may be reduced to actual possession immediately." Id. In State v. Simpson, 95 Wn.2d 170, 181, 622 P.2d 1199 (1980), the defendant had automatic standing through constructive possession of the car that was searched, because he was observed driving the car, parking it in front of his home, locking it, and because he had the key in his pocket at the time of his arrest. By contrast, in State v. Zakel, 119 Wn.2d 563, 569-70, 834 P.2d 1046 (1992), the defendant did not constructively possess the searched vehicle when it was searched while illegally parked, unattended in a commercial alley, and unlocked with windows open and the keys inside. The court dismissed the fact that the defendant's belongings were inside the car, that he had been living in the car for several days, and that he had obtained an estimate for repairs to the car as irrelevant to determining Zakel's possession at the time of the search.
Wayland contends that it is inconsistent to conclude he lacked automatic standing since he did not have actual or constructive possession of the backpack, but to permit the State to argue in its closing argument at trial that Wayland could be found guilty by constructive possession since he had a key to the locked compartment and could return to take physical possession of the gun. This contention confuses two separate inquiries: standing is determined by possession at the time of the search, while the conviction is based on possession at any time.
Wayland's case is akin to Zakel. At the time of the search, the backpack was unattended, inside a commercial dumpster in an alley. That Wayland's belongings were inside the bag, that he held the key to the locked compartment, or that he intended to return to retrieve the bag does not support the conclusion that he possessed the backpack at the time police seized the bag and conducted the search.
The trial court did not err in concluding Wayland lacked standing to challenge the search.
Moreover, even were Wayland able to challenge the search, the officers' community caretaking function justified opening the backpack. Police may search lost or mislaid property without a warrant with the purpose of returning that property to its owner. State v. Kealey, 80 Wn. App. 162, 174-75, 907 P.2d 319 (1995). Additionally, police procedure required removal and securing of the gun before the bag could be impounded. "The coexistence of investigatory and administrative motives does not invalidate the lawful search for identification." Id. at 175.
The search was constitutional, and the motion to suppress was properly denied.
Affirmed.
SCHINDLER and DWYER, JJ., concur.