Opinion
No. 24353-2-III.
August 9, 2007.
Appeal from a judgment of the Superior Court for Douglas County, No. 05-1-00008-6, John Hotchkiss, J., entered June 27, 2005.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.
Larry S. Brown appeals his convictions on one count each of unlawful possession of ephedrine/pseudoephedrine or anhydrous ammonia with intent to manufacture methamphetamine and unlawful possession of methamphetamine. He contends, for the first time on appeal, that the admission of evidence from the search of a black Oldsmobile was unlawful as its search was not authorized by a warrant for the search of a maroon Oldsmobile. We conclude that even if the car searched were incorrectly identified in the warrant — which we cannot determine from this record — Mr. Brown cannot meet his burden to show the officers could not correctly identify the premises to be searched. We therefore affirm.
On January 11, 2005, officers obtained and executed a warrant to search Larry Brown, the motor home he resided in parked outside of a residence located at 2950 Sunset Highway in East Wenatchee, and a "[m]aroon Oldsmobile car" also located at that residence that was "used and controlled by Larry Scott Brown." Clerk's Papers (CP) at 5.
The search warrant affidavit was based on information provided by Alfred Sperle. Mr. Sperle was a police informant with a contract to exchange information in order to obtain a lesser charge and sentence arising from his own methamphetamine arrest. With one day left to perform his contract, Mr. Sperle reported that while on the Sunset Highway property with Mr. Brown, he saw a 40-pound sack of ammonium nitrate and several feet of tubing in the trunk of a "maroon" Oldsmobile when Mr. Brown had retrieved tools from the car. CP at 3. In the motor home, Mr. Sperle reportedly saw a gallon container of Coleman fuel, a pint container of acetone, a quart-sized jar with a bi-layer solution, about 150 coffee filters, and a plastic bottle with tubing attached to the cap. The items described are used in the manufacture of methamphetamine.
The officers prepared an inventory of the items seized — which included a statement that a "[m]aroon" Oldsmobile had been searched — and listed the contraband found on the searched premises. CP at 8. Mr. Brown was ultimately charged with manufacture of methamphetamine and possession of ephedrine or pseudoephedrine or anhydrous ammonia with intent to manufacture methamphetamine. He did not move to suppress the evidence seized from the Oldsmobile.
Defense counsel cross-examined Detective Scott Allen at trial as to whether the vehicle searched was "not a maroon Oldsmobile; it's black." Report of Proceedings (RP) at 253. Detective Allen answered, "That's correct." RP at 254. Mr. Brown identified a picture of the "black Oldsmobile" searched and stated that it did not belong to him. RP at 378 (Ex. 14). Detective David Helvey testified that while executing the warrant, he tried to find the "maroon Oldsmobile" described in the search warrant and searched the only Oldsmobile on the premises, which was "dark-colored." RP at 279. He admitted on cross-examination that when he did find the vehicle, it was "the wrong color." RP at 298. In his trial testimony, Mr. Sperle once described the car as "brown." RP at 202.
Detective Allen testified that he showed Mr. Brown some keys that were found in the motor home and asked if any went to the Oldsmobile. Mr. Brown stated that he did not have keys to the vehicle and it was not his. Detective Helvey testified that when he asked Mr. Brown for the keys to the Oldsmobile, Mr. Brown told him that the vehicle was not his, but also stated that he lost the keys. Craig Nyblod, Mr. Brown's corrections officer, testified that he heard Mr. Brown initially deny owning the car and then state it was his but he had lost the keys. The officers ultimately gained entry by popping the trunk with a screwdriver. The evidence showed that Mr. Brown was not the registered owner of the car.
Mr. Brown was convicted as charged. On appeal, a commissioner denied the State's motion on the merits.
In general, appellate courts will not consider issues raised for the first time on appeal. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). However, "[t]here is an exception — a narrow exception — for certain constitutional questions [that] meet the criteria of a '"manifest error affecting a constitutional right."'" State v. Trout, 125 Wn. App. 313, 317, 103 P.3d 1278 (citing State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988) and quoting McFarland, 127 Wn.2d at 333 (quoting RAP 2.5(a)(3)), review denied, 155 Wn.2d 1004 (2005).
Accordingly, "[t]he defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error 'manifest', allowing appellate review." McFarland, 127 Wn.2d at 333. "'Manifest' means unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed." 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)). In that case, the appropriate vehicle for seeking review is through a personal restraint petition. State v. McNeal, 98 Wn. App. 585, 595, 991 P.2d 649 (1999), aff'd, 145 Wn.2d 352, 37 P.3d 280 (2002).
Mr. Brown contends here that because the search warrant incorrectly described a black, rather than a maroon, Oldsmobile, the search of the black Oldsmobile constituted a warrantless search. The error alleged is an issue of constitutional magnitude because it involves the lawfulness of a search and seizure under the Fourth Amendment. State v. Busig, 119 Wn. App. 381, 391, 81 P.3d 143 (2003). But merely being of constitutional magnitude does not warrant review for the first time on appeal unless that error is manifest, i.e., "unmistakable, evident or indisputable." Lynn, 67 Wn. App. at 345; Trout, 125 Wn. App. at 317. The record here is not so clear.
Although Detective Allen and Mr. Brown described the Oldsmobile that was searched as being "black," rather than "maroon," Detective David Helvey described the Oldsmobile as "dark-colored," albeit the "wrong color." RP at 253-54, 279, 298, 378. The inventory signed by Detective Helvey states that officers did in fact search a "[m]aroon" Oldsmobile. CP at 8. The car was also described as "brown." RP at 202.
There appears to be a factual issue as to whether officers did in fact search the vehicle described in the warrant — a maroon Oldsmobile. Since there is no factual determination to review on this issue, the error is not manifest, and this issue is not reviewable, as presented, on appeal. Busig, 119 Wn. App. at 391.
Even on the merits, Mr. Brown's claim fails. See Lynn, 67 Wn. App. at 345 (reviewing the merits as the third step in the analysis of alleged constitutional error raised for the first time on appeal); State v. Morse, 156 Wn.2d 1, 5, 123 P.3d 832 (2005) (holding that control of property is a question of law in a consent search context).
The particularity required in a warrant for the search of a vehicle is the same as that required for a residence. See State v. Cohen, 19 Wn. App. 600, 604, 576 P.2d 933 (1978). When a warrant contains errors, the burden is on the party challenging the warrant to show that errors could have resulted in a search of the wrong premises. State v. Fisher, 96 Wn.2d 962, 967, 639 P.2d 743 (1982); see also State v. Smith, 39 Wn. App. 642, 649, 694 P.2d 660 (1984) (upholding a search where the incorrect town was identified in the warrant where the defendant made no showing that a similar address existed that could have been mistakenly searched or even that a street of the same name existed in the wrongly identified town). The test is not whether an officer could hypothetically or theoretically search the wrong premises, but whether, under the circumstances presented, an officer could reasonably determine the correct premises to be searched. State v. Bohan, 72 Wn. App. 335, 339-40, 864 P.2d 26 (1993). If an officer can so determine, the warrant is valid. Id.
The warrant here describes the item to be searched as a "[m]aroon Oldsmobile car, located at 2950 Sunset Highway, East Wenatchee, Douglas County WA" which "is used and controlled by Larry Scott Brown." CP at 5. Although Mr. Brown at times denied ownership of the searched vehicle, he told Mr. Nyblod and Detective Helvey before the Oldsmobile was searched that he had lost its keys, implying he had control over the vehicle.
On this record, Mr. Brown cannot meet his burden to show that, under the circumstances, the officers would not be able to correctly identify the vehicle searched. There was only one Oldsmobile on the scene, which was variously described at trial as dark-colored, black, brown, and maroon. And, there was some indication that Mr. Brown at one time had a key.
Affirmed.
A majority of the panel has determined that 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.
Kulik, J. and Kato, J. Pro Tem., CONCUR.