Opinion
No. 38687-9-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-04381-2, Thomas P. Larkin, J., entered December 12, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
Lorrie Ann Brown appeals her possession of methamphetamine conviction. She argues that Lakewood Police officers arrested her illegally, and that trial counsel did not effectively represent her by not seeking to suppress evidence obtained in a search incident to her arrest. We affirm.
In violation of RCW 69.50.4013.
A court commissioner initially considered Brown's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
FACTS
On August 22, 2007, Brown was a passenger in a car driven by Paul Knox. She was sitting in the backseat behind the front passenger seat. Her long-time friend Jason Frack was in the front passenger seat. Lakewood Officer Jeff Martin stopped the car after learning that Knox had a suspended license. He arrested Knox, who whispered to him that there was methamphetamine somewhere in the car. Martin assumed Knox was telling him that one of the passengers had brought it into the car.
Martin also arrested Frack, who refused to cooperate. While backup officer, Jason Catlett, helped to secure the two men, Martin talked to Brown. He told her that the officers were going to search the car and that she could leave if she wanted to. Brown left.
Brown disputed this, asserting that she was detained for a time in a third officer's vehicle, that her purse was searched at that time, and that the contents was strewn over the backseat of Knox's car. She opined that when she put her possessions back into her purse, she may have inadvertently included the drugs and paraphernalia.
After Brown left, a third officer, Martin Knott, arrived, and he and Martin searched Knox's car. In the right front passenger door storage compartment, the officers found a digital scale and a spoon containing white powder residue. The officers also found a baggie containing what appeared to be methamphetamine on the floor behind the front passenger seat underneath the lid of a small fast-food drinking cup.
Martin asked Knott to find Brown and bring her back. Knott found her approximately a block away and she returned without objection. However, she became very angry when she learned that she was going to be arrested, profanely berating Martin. Martin searched Brown's purse incident to her arrest and found a baggy of methamphetamine, a glass smoking pipe, syringes, and additional packaging materials.
The State charged Brown with possession of methamphetamine. Brown's counsel brought a motion to suppress the statements she had made to Martin. The court denied that motion, and a jury convicted her as charged. Brown now appeals.
ANALYSIS
Brown argues that trial counsel should have challenged the arrest and moved to suppress the evidence seized from her purse. She argues that the methamphetamine found in the car could have belonged to any of the occupants, and it did not provide grounds for an individualized determination of probable cause.
In order to establish that counsel was ineffective, Brown must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice. State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007) (adopting test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To show deficient representation, Brown must show that counsel's performance fell below an objective standard of reasonableness based on all of the circumstances. Nichols, 161 Wn.2d at 8 (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). Prejudice is established if there is a reasonable probability that, but for counsel's unprofessional errors, the trial outcome would have been different. Nichols, 161 Wn.2d at 8.
The claimed deficiency here is the failure to challenge an allegedly unlawful arrest. Where officers do not have anything to independently connect an individual to illegal activity, no probable cause exists and an arrest or search of that person is invalid under article I, section 7 of Washington's constitution. State v. Grande, 164 Wn.2d 135, 142, 187 P.3d 248 (2008). A claim of ineffective assistance of counsel may be considered for the first time on appeal as an issue of constitutional magnitude. Nichols, 161 Wn.2d at 9. However, Brown must establish that the claimed error is a "manifest error affecting a constitutional right." McFarland, 127 Wn.2d at 333 (quoting RAP 2.5(a)(3)). In order to be "manifest," an alleged error must have "practical and identifiable consequences in the trial." State v. Barr, 123 Wn. App. 373, 381, 98 P.3d 518 (2004) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown, and the error is not manifest. McFarland, 127 Wn.2d at 333 (citing State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993)).
Failure to bring a motion to suppress is not per se deficient. McFarland, 127 Wn.2d at 336. Counsel can legitimately decline to seek suppression if there is no viable ground for such a motion. Nichols, 161 Wn.2d at 14.
An officer has probable cause to arrest a person if the facts and circumstances within his knowledge are sufficient to cause a person of reasonable caution to believe that the suspect is committing or has committed a crime. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996) (quoting State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986)). To provide probable cause in a drug possession case, the facts and circumstances must indicate actual or constructive possession. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994)). Constructive possession involves dominion and control over the drugs or over the premises in which they are found. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). A passenger's occupancy of a particular part of an automobile may constitute dominion and control of the drugs or the area in which they are found. See State v. Coahran, 27 Wn. App. 664, 668, 620 P.2d 116 (1980) (discovery of marijuana inside the truck sleeper, immediately behind the passenger seat provided probable cause to arrest the passenger); see also State v. Matthews, 4 Wn. App. 653, 655-57, 484 P.2d 942 (1971) (evidence was sufficient to prove that Matthews constructively possessed drugs and syringes found under the right backseat he occupied, that Matthews had purchased drugs before beginning the trip, and that it was unlikely that other drug users in the car would have hidden their drugs where Matthews had access to them).
In this case, the testimony indicated that the baggie of methamphetamine found in the car was just under the back edge of the front passenger seat, and it was covered with the lid of a paper cup. It was undisputedly within Brown's reach, but we do not know whether either the driver or the front seat passenger could have reached that area. In summarizing the facts during an argument on pretrial motions, the State told the trial court that the officers found the baggie of methamphetamine "kind of underneath the seat that would have been directly in front of [Brown], in such a manner that they believed she would have been the only person that could have placed it there." Report of Proceedings at 9. However, there was no challenge to probable cause, and no such testimony was actually elicited. There is nothing in this record that compels a finding that the officers did not have a reasonable basis to believe that Brown put the baggie of methamphetamine under the seat. Accordingly, we affirm the conviction.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.