Opinion
No. 26706-7-III.
January 29, 2009.
Appeal from judgments of the Superior Court for Spokane County, No. 07-1-00954-1, Ellen K. Clark and Robert D. Austin, JJ., entered October 11 and December 27, 2007.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Sweeney, J.
UNPUBLISHED OPINION
The question here is whether a motel manager acts as an agent for law enforcement when he enters a guest's room based on suspicions reported to him by a maid. Here, the manager recognized items in a hotel used for manufacturing methamphetamine in Terrance Annis's motel room and called the police. The police obtained a search warrant and arrested Mr. Annis for manufacture of a controlled substance.
The trial court properly denied Mr. Annis's motion to suppress, concluding that the manager was a private individual who was not acting as a government agent. Accordingly, we affirm the trial court and Mr. Annis's conviction.
FACTS
In October 2006, Terrance Annis rented a room at the Downtowner Motel. The next day, a maid entered Mr. Annis's room and found some items that caused her concern. The maid reported her concerns to the motel manager, Kevin Hale. Mr. Hale entered the room and observed "[j]ars, hot tray, can of Heet, bunch of matches, tubes, that kind of stuff." Report of Proceedings at 68. Mr. Hale then called the police.
The police executed a search warrant for the motel room and discovered numerous chemicals, including methamphetamine residue, as well as items used in the manufacture of methamphetamine.
Mr. Annis was arrested and charged with manufacturing a controlled substance — methamphetamine. Prior to trial, Mr. Annis moved to suppress the evidence obtained during the search pursuant to CrR 3.6, arguing the search violated his Fourth Amendment rights because Mr. Hale acted as a government agent. The trial court found that Mr. Hale was not acting as a government agent and denied the motion to suppress.
A jury convicted Mr. Annis of manufacturing a controlled substance — methamphetamine. Mr. Annis appeals.
ANALYSIS
"A trial court's determination that a search did not violate the Fourth Amendment because it was a private search is a legal conclusion reviewed de novo." State v. Krajeski, 104 Wn. App. 377, 382, 16 P.3d 69 (2001) (citing United States v. Reed, 15 F.3d 928, 930 (9th Cir. 1994)).
The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. The Fourth Amendment does not protect against searches by private individuals, unless the private individual is acting as an agent of the government. Krajeski, 104 Wn. App. at 382-83. The Washington Constitution (article I, section 7) does not provide any more protection against private searches than the Fourth Amendment. State v. Clark, 48 Wn. App. 850, 855, 743 P.2d 822 (1987).
There are two critical factors for courts to consider when determining whether a private individual is acting as a government agent: "(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends." Krajeski, 104 Wn. App. at 383. Mr. Annis has the burden of showing that Mr. Hale was acting as a government agent. See id. at 382-83.
The trial court found that the search was lawful because Mr. Hale was acting as a private individual, not as an agent of the government. The trial court's position is sound. There was no evidence before the trial court that the government knew of Mr. Hale's actions and acquiesced in them.
Significantly, there was no prior agreement that Mr. Hale would investigate for the police and there is no evidence that Mr. Hale was acting on behalf of the police. Mr. Hale was acting in the best interest of his business. When the maid informed Mr. Hale of her suspicions, he looked at the room to determine for himself whether or not there was possible illegal drug activity. Mr. Hale entered Mr. Annis's room before he had any contact with the police. The trial court properly refused to suppress the evidence found during Mr. Hale's search.
Statement of Additional Grounds. Mr. Annis submitted a statement of additional grounds for review to supplement his attorney's brief. He raises two issues in his statement. First, Mr. Annis argues that he was denied his Sixth Amendment right to confront the maid when her assertions were the basis for the search warrant. Second, he argues his right to due process was violated.
Confrontation Clause. Mr. Annis argues that he was denied his Sixth Amendment right to confront witnesses against him. He asserts that the maid's statements were admitted as hearsay and that he should have the right to cross-examine her under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Mr. Annis's argument is unpersuasive. "Hearsay" is defined as a statement "offered in evidence to prove the truth of the matter asserted." ER 801(c). The maid's statement was not offered to prove the truth of the matter asserted. Her statement was not used to prove Mr. Annis was manufacturing methamphetamine. Her statement was used only to show the chain of events leading from her discovery to Mr. Hale's inspection to police involvement.
Due Process. Mr. Annis argues he was denied his Fourteenth Amendment right to due process of law. He gives several examples, none of which have merit.
Accordingly, we affirm Mr. Annis's conviction for manufacture of methamphetamine.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and SCHULTHEIS, C.J., concur.