Opinion
67206-1-I
11-13-2012
STATE OF WASHINGTON, Respondent, v. TJUAN LEON BLYE, Appellant.
UNPUBLISHED OPINION
Spearman, J.
Following a bench trial, Tjuan Blye was convicted of possession of a controlled substance. He appeals, claiming the trial court failed to enter written findings of fact and conclusions of law as required by CrR 6.1(d). In a statement of additional grounds, Blye claims that Department of Corrections (DOC) officer Scott Lee arrested him without probable cause or a warrant from his community corrections officer (CCO), in violation of his constitutional rights. Blye also argues in his statement of additional grounds that the trial court erred in denying his motion to suppress evidence because his arrest for a violation of a sentence condition was a pretext for investigating a different crime. We hold that (1) the trial court's entry of deficient findings of fact was harmless error; (2) Lee had sufficient grounds for lawful arrest without a warrant; and (3) the trial court's denial of Blye's motion to suppress was not error.
FACTS
On March 16, 2010, DOC community corrections specialist Scott Lee was riding in a patrol car driven by Everett police officer Mike Atwood on the assignment of the Everett Police Department Anti-Crime team. Atwood recognized Tjuan Blye, who was entering a store, as an individual on active probation and notified Lee about Blye's status. Lee ran a computer check in the DOC database and learned that Blye's urinalysis (UA) taken on March 9 had come back positive for cocaine on March 15. Testing positive for an unlawful controlled substance was a violation of one of Blye's sentence conditions. By then, Blye had left the store and was riding in a white car as a passenger. Upon Lee's request, Atwood stopped the car, and Lee arrested Blye for violating a condition of his sentence. A K-9 unit search of the car revealed two digital scales with white powder residue on them.
While Blye was en route to the Snohomish County Jail to be booked for the sentence violation, he asked whether he was going to be strip-searched in the jail. The officers answered that most likely he would be. Blye then said he wanted to work something out. When the officers asked Blye about any drugs on his person, Blye replied that he had crack cocaine in his underwear. At the jail, Blye shook out of his pants a plastic baggie that contained 6.53 grams of cocaine.
Blye was charged with possession of a controlled substance. He moved to suppress the physical evidence against him. At the CrR 3.6 hearing, the court excluded the evidence recovered from the car (scales and white powder residue) for lack of probable cause to search the car, but refused to suppress evidence of cocaine found on Blye.
The trial court concluded that Blye was properly arrested for a violation of his sentence conditions, and that he voluntarily turned over cocaine to the officers at the jail.
Following the CrR 3.6 hearing, Blye agreed to a bench trial and stipulated to the facts set forth in the affidavit of probable cause and police reports. The affidavit of probable cause stated in pertinent part:
When the defendant was en route to the jail where he was going to be booked for the DOC violation, he asked if he was going to be strip searched. Officer Atwood replied he most likely would be strip searched. The defendant said he wanted to work something out. Officer Atwood concluded the defendant likely had a controlled substance on his person. The defendant said he had crack cocaine in his underwear. At the jail, the defendant shook an item out of his underwear and down his left pant leg. The officers retrieved a plastic baggie containing a substance which field tested positive for the presence of cocaine. The substance weighted 6.53 grams.Clerk's Papers (CP) at 51.
The trial court found Blye guilty. Blye appeals his conviction.
DISCUSSION
Blye claims the trial court failed to enter written findings and conclusions as required by CrR 6.1(d) and asks this court to remand for entry of written findings of facts and conclusions of law. He also argues that the trial court erred when it denied his motion to suppress the cocaine found on his person. Finally, he contends that his arrest was unlawful because (1) Lee had neither probable cause for the arrest nor a warrant from his CCO and (2) his arrest for a violation of a sentence condition was a pretext for Lee to investigate a different crime. We reject Blye's claims and affirm the conviction.
Failure to Enter Findings and Conclusions
First, Blye contends the trial court failed to follow CrR 6.1(d) because it did not enter any written findings of fact and conclusions of law. After a bench trial, the judge must enter findings of fact and conclusions of law. CrR 6.1(d); State v. Banks, 149 Wn.2d 38, 43, 65 P.3d 1198 (2003). The findings and conclusions must address each element of the charged offense, "setting out the factual basis for each conclusion of law." Banks, 149 Wn.2d at 43 (citing State v. Head, 136 Wn.2d 619, 623, 964 P.2d 1187 (1998)). In addition, the findings must specifically state that an element has been met. Banks, 149 Wn.2d at 43 (citing State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995)). Here, the elements of possession of a controlled substance are (1) possession of a controlled substance and (2) the act occurred in the State of Washington. RCW 69.50.4013.
CrR 6.1(d) provides:
In a case tried without a jury, the court shall enter findings of fact and conclusions of law. In giving the decision, the facts found and the conclusions of law shall be separately stated. The court shall enter such findings of fact and conclusions of law only upon 5 days' notice of presentation to the parties.
RCW 69.50.4013 provides:
Possession of controlled substance — Penalty.
(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. (2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.
In addition, if the conviction is for an offense committed while the offender was under community custody, as here, the court is to add one point to the offender score. RCW 9.94A.525.
Blye is incorrect when he claims no findings of fact were entered. In the Stipulation for Bench Trial, the trial court entered the following findings and conclusions:
5.2 Findings of Fact Regarding Charged Crime(s)
This court considered the agreed documentary evidence, applying the standard that the state must prove all elements of the offense(s) by proof beyond a reasonable doubt. The court makes the following findings of fact: The defendant, Tjuan Leon Blye, on or about the 16th day of March, 2010, did unlawfully possess a controlled substance, to-wit: Cocaine in Snohomish County, Washington; and the crime was committed while the Defendant was under community custody.
5.3 Conclusion of Law
The defendant is guilty of the crime(s) of: Possession of a Controlled Substance, Crime Committed While on Community Custody.
Although these findings address each element of the crime, they are conclusory. Moreover, they do not expressly state that all of the elements have been met. The findings, therefore, are deficient. See State v. Heffner, 126 Wn.App. 803, 811, 110 P.3d 219 (2005) (trial court erred when it neither supported the elements of the crime with a factual basis nor stated that the elements were met).
This deficiency, however, does not automatically require remand. Insufficiency of findings of fact and conclusions of law from a bench trial is subject to a harmless error analysis. Banks, 149 Wn.2d at 43; Heffner, 126 Wn.App. at 811. Under the harmless error analysis, the court determines "'whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Banks, 149 Wn.2d at 44 (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)).The test is whether "'there is a reasonable probability that the outcome of the trial would have been different had the error not occurred . . . .' A reasonable probability exists when confidence in the outcome of the trial is undermined.'" Banks, 149 Wn.2d at 44 (quoting State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995)).
Blye does not address the harmless error analysis.
Heffner is on point. There, the State charged Heffner with first-degree theft. Heffner, 126 Wn.App. at 805. He stipulated to the facts and was found guilty after a bench trial. On appeal, Heffner challenged the sufficiency of the trial court's findings and conclusions. Id. at 811. This court agreed that the findings were insufficient because "the trial court neither supported the elements of the crime with a factual basis nor stated that the elements were met." Id. But because the parties stipulated to "30 paragraphs of facts that fill five single-spaced pages, " we held that sufficient facts supported the elements and there was no doubt that every element was met. Id. Therefore, "although the findings of facts and conclusions of law did not meet the formalities required, the deficiencies were harmless. . . ." Id. at 811-12.
As in Heffner, the error here was harmless. Blye stipulated to the facts set forth in the affidavit of probable cause and police reports. The affidavit and reports provided that at the time of the arrest, Blye was on active probation. Upon arriving at the jail to be booked for a DOC violation, Blye shook a baggie with 6.53 grams of cocaine out of his pants. These facts were sufficient to support the trial court's conclusion that Blye possessed cocaine. Moreover, the trial court informed Blye that it would consider the stipulated facts as the evidence in his case and review them to determine whether every element of the charged crime was met. Blye confirmed that he had had a chance to review the evidence. Similarly, his counsel told the court that there were no facts in dispute. Because the trial court had before it overwhelming evidence supporting the elements to which Blye stipulated, there was no reasonable probability that it would have reached a different outcome had it entered more detailed findings. We reject Blye's request for remand.
Unlawful Arrest
Blye argues that his arrest was unlawful because Lee had neither probable cause for the arrest nor a warrant from Blye's CCO. This claim lacks merit. It is well settled that individuals on parole have fewer expectations of privacy. Samson v. California, 547 U.S. 843, 846-47, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (holding that for Fourth Amendment purposes, probationers have fewer expectations of privacy than free citizens, and parolees have still fewer expectations of privacy than probationers); State v. Reichert, 158 Wn.App. 374, 386, 242 P.3d 44 (2010), rev. denied, 171 Wn.2d 1006, 249 P.3d 1831 (2011) (holding that individuals on parole have a reduced expectation of privacy because of the State's continuing interest in supervising them). Furthermore, the Washington Legislature has specifically provided CCOs with the authority to seize, search, and arrest parolees without a warrant if an offender violates a condition of his or her sentence.
RCW 9.94A.631(1) provides:
If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender's person, residence, automobile, or other personal property.RCW 9.94A.716(4) states that "[a] violation of a condition of community custody shall be deemed a violation of the sentence for purposes of RCW 9.94A.631."
Here, Lee was a DOC community corrections specialist whose responsibilities included locating and arresting offenders who violated their sentence conditions. 3/4/2011 VRP at 23-24. After observing Blye, Lee ran a check of the DOC database, which revealed that Blye's UA had returned positive for cocaine the day before. Because Lee had reliable information that Blye violated a condition of his sentence, he had sufficient grounds to lawfully arrest Blye without a warrant.
Blye also argues that Lee needed a warrant from Blye's assigned CCO. We do not address this claim because (1) RCW 9.94A.631 and .716 authorize CCOs to arrest offenders without a warrant, and (2) Blye did not raise this issue at the CrR 3.6 hearing. We reject Blye's attempt to raise this issue for the first time on appeal. RAP 2.5(a); State v. Lee, 147 Wn. App 912, 922, 199 P.3d 445 (2008).
Pretextual Stop
Finally, Blye argues that his arrest for a violation of a sentence condition was a pretext for Lee to investigate a different crime. He contends this conflicts with the court's holding in State v. Ladson, 138 Wn.2d. 343, 979 P.2d 833 (1999).Thus, he appears to contend the trial court erred in refusing to suppress cocaine found on him following the arrest. We disagree.
Blye claims a violation of his rights under the United States Constitution. Although he does not specifically raise a violation of article I, section 7, of the Washington State Constitution, we assume he does so by citing to Ladson. Pretextual traffic stops do not violate the Fourth Amendment of the U.S. Constitution. Ladson, 138 Wn.2d. at 347, 979 P.2d 833 (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).
Challenged findings entered after a suppression hearing that are supported by substantial evidence are binding, and unchallenged findings are verities on appeal. State v. Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). A trial court's conclusions of law entered in support of a ruling on a motion to suppress evidence are reviewed de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997). Because Blye has not assigned error to any of the trial court's CrR 3.6 findings of fact, our review is limited to a de novo determination of whether the court derived proper conclusions of law from those findings. See State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (defendant's failure to assign error to the facts entered by the trial court precludes review of these facts and renders these facts binding on appeal).
Blye relies exclusively on Ladson. But Ladson is factually distinguishable. There, a car in which Ladson was a passenger was stopped for expired license tabs. Ladson, 138 Wn.2d at 346. The officers conceded that the stop was a pretext to investigate unsubstantiated rumors that the driver was a drug dealer. Id. During the stop, the officers searched Ladson and found a handgun, marijuana, and $600. Id. at 347. He was charged with unlawful possession of a controlled substance with intent to deliver while armed with a deadly weapon, and possession of a stolen firearm. Id. The trial court granted Ladson's CrR 3.6 motion. The Washington Supreme Court affirmed the trial court's suppression order, holding that the police may not use the commission of a minor traffic violation as a pretext for a warrantless search and seizure. Id. at 352-53. "In the case of pretext, the actual reason for the stop is inherently unreasonable, otherwise the use of pretext would be unnecessary." Id. at 353.
Unlike in Ladson, nothing in the record indicates that the stop here was inherently unreasonable. The trial court's CrR 3.6 findings of fact indicate that at the time of Blye's arrest, Lee was on assignment to the anti-crime team. Atwood and Lee knew that Blye was on community custody. After observing Blye, Lee ran a check of the DOC database, which revealed that Blye's UA had returned positive for cocaine the day before. The drug-positive UA was a violation of a condition of Blye's sentence. Lee advised Atwood of the violation and asked him to stop the vehicle in which Blye was a passenger. Based on these findings, the court concluded that the basis for the stop was not a pretext and that the officers had authority to arrest Blye because of the violation of his sentence.
We hold that the trial court's conclusions are well supported by its unchallenged findings and we reject Blye's claim that the stop was a pretext. Blye's contention rests solely on Lee's testimony at the CrR 3.6 hearing that Lee had unsubstantiated information that Blye was selling illegal drugs. Based on that, Blye argues that the arrest was a pretext to search for evidence to confirm that information. But the trial court correctly determined that the stop and arrest of Blye was not a pretext. Lee requested Atwood to initiate the stop because he had reliable information that Blye had violated a condition of his sentence. Under these circumstances, there was nothing inherently unreasonable about Lee's decision to stop and arrest Blye. The trial court did not err in denying Blye's motion to suppress on this ground.
Affirmed.