Opinion
No. 33443-7-II.
June 20, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-00342-3, Brian M. Tollefson and Beverly G. Grant, JJ., entered June 15, 2005.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Cort O'Connor, Pierce Co Pros Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Stephen Campbell appeals his convictions for unlawful manufacturing and unlawful possession of a controlled substance methamphetamine. He argues that the trial court erred in denying his motion to suppress physical evidence seized during a search of his residence where the police failed to administer Ferrier warnings before seeking consent to enter to speak with the occupant about a probation violation. We affirm.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
FACTS
I. Probation Violation Investigation
Torrey McDonough, a Community Corrections Officer (CCO) with the Washington Department of Corrections (DOC), monitors probationers in Pierce County, working in partnership with the Pierce County Sheriff's Department Community Service Team (CST). CCO McDonough shares office space with the CST. Members of the CST often assist CCOs when they contact probationers.
The CST is a special unit that cooperates with other state and local agencies in proactively addressing various problems and complaints in unincorporated Pierce County. This unit keeps a CCO in the office for probation-related issues.
On December 30, 2004, the CST received a confidential email complaint about illegal drug activity at a loft above a garage in unincorporated Pierce County. The complaint specifically named Stephen Campbell and Cora Drath as the individuals involved. The investigation was assigned to Deputy Robert Blumenschine, who recognized the name `Cora Drath' and performed a records check to determine if she had outstanding warrants or was on active supervision with the DOC. Finding that Drath was on active supervision, he briefed CCO McDonough and other CST staff members.
The described activity was consistent with the manufacture and sale of methamphetamine, a high level of traffic going to the loft above the garage at all hours and an ammonia smell in the air.
Cora Drath is also known as `Cora Gallant' and `Cora Drath-Gallant.'
Cora Drath had a previous conviction for unlawful methamphetamine possession. Her sentencing conditions prohibited her from possessing, consuming, or using any controlled substances, or associating with drug users or sellers. She also had to report to her assigned CCO and perform 160 hours of community service through a work crew. CCO McDonough determined that Drath had failed to report to her work crew to perform her community service hours.
After a briefing on January 20, 2005, CST members and CCO McDonough went to the Drath/Campbell residence, where they spoke with Kay Fast, Cora Drath's mother, at the main house. Fast confirmed that Drath lived in the loft above the garage behind the main house.
While CCO McDonough and Deputy Blumenschine were speaking with Fast, Deputy Jeffrey Papen parked his patrol car at the end of driveway and walked directly toward the garage. As Deputy Papen approached, Campbell came out of the garage, greeted him, and stated that he lived in the loft above the garage with Drath. Deputy Papen asked if there was anyone else in the garage or the loft; Campbell replied that there was another male, James Hurst, in the garage and that Drath was sleeping in the loft. At Deputy Papen's request, Campbell went back into the garage to get Hurst. While Campbell was in the garage, he left the door open and Deputy Papen could smell a distinct solvent odor consistent with the manufacture of methamphetamine, which he had previously smelled at many clandestine methamphetamine labs.
Another deputy arrived to stand by with Hurst. Deputy Papen asked Campbell if he would mind waking up Drath so Deputy Papen could talk to both of them. Campbell agreed, showed Deputy Papen to a stairwell outside the garage that led up to the loft, and walked with Deputy Papen up the stairway to the door to the loft where Drath was sleeping. Campbell explained that Drath had locked the door after he left the loft earlier that morning. Campbell started knocking, but when he did not get a response, he mentioned to Deputy Papen that Drath is a heavy sleeper. Deputy Papen also knocked loudly several times and did not receive a response.
After Campbell and Deputy Papen waited on the landing for several minutes, Drath called out from behind the door and asked who was there. Campbell answered that he was there with the Sheriff's Department. Drath opened the door and greeted the two men. Deputy Papen explained to her that he and CCO McDonough wanted to discuss a complaint with her and asked if they could come inside to talk. Drath agreed and invited Deputy Papen inside; Campbell followed. Deputy Papen stood just inside the door and radioed CCO McDonough that he had located Drath so that McDonough could come speak with her about probation matters.
In response to Deputy Papen's question, Drath acknowledged that she was on DOC supervision. Deputy Papen then asked when she had last used drugs, to which she responded that she had used methamphetamine the night before. Still standing a couple of steps inside the door, Deputy Papen noticed a bong on the floor, and asked Drath if she used it to smoke marijuana. She replied, `[N]o, I smoke meth in that.' Report of Proceedings (RP) at 40.
A `bong' is `a simple water pipe for smoking marijuana that consists of a bottle or vertical tube partially filled with a liquid (as water or liqueur) and a smaller offset tube ending in a bowl.' Webster's Third New International Dictionary of the English Language 65a (2002).
At that point, CCO McDonough arrived and asked Drath if she had any drugs or paraphernalia in the loft. She replied that she did. CCO McDonough also spoke to Drath about her probation violations the missing community service hours and drug activity complaint. Drath admitted to him that she had used methamphetamine the night before.
CCO McDonough then spoke with Campbell and discovered that he, too, was on probation for unlawful possession of a controlled substance. Campbell's presence was an additional probation violation for Drath because she was prohibited from associating with drug users or sellers.
CCO McDonough called his immediate supervisor and received permission to search the loft according to DOC policy permitting a search of a probationer's residence if there is reasonable suspicion that a probation violation has occurred. CCO McDonough believed that such reasonable suspicion existed based on the drug paraphernalia he had observed, Drath's own admission of drug use the night before, and her association with drug users or sellers, namely Campbell.
CCO McDonough informed Drath of his intention to search the residence and then conducted the search, looking into cabinets and through belongings. In a cabinet, CCO McDonough discovered a razor blade and white powder on a plate. Drath then led Deputy Papen to the cabinet, where she identified the powder as methamphetamine. At this point, Drath and Deputy Papen were in the bedroom/sleeping area of the loft. On the floor, next to the dresser, was a can of denatured alcohol which Drath said she and Campbell used to `clean their methamphetamine.' RP at 42.
Deputy Papen advised Drath of her Miranda rights, which she acknowledged. Drath then told Deputy Papen that she had been arguing with Campbell about methamphetamine manufacturing items that he kept in the garage. Deputy Papen noticed that he was standing on a hatch door and asked Drath to open it. Below the hatch was a ladder leading to the garage below. Through the hatch, Deputy Papen could see a clear plastic tub with a blue top; he asked Drath if the tub contained items used for manufacturing methamphetamine. She replied, `[Y]es, maybe some tubing, pans[,] and pitchers,' and several different chemicals used to manufacture methamphetamine. RP at 45.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Drath specified, `[A]cid, toluene, and Coleman fuel.'
Deputy Papen also contacted Campbell and read him his Miranda rights. He acknowledged that he used methamphetamine, that the garage contained items used for manufacturing methamphetamine, and that he had previously extracted ephedrine from pills in the loft, where he and Drath lived.
Deputy Papen read Campbell and Drath consent-to-search forms, which both signed. Deputy Papen did not search the garage; instead, he called in a Clandestine Lab Team (CLT) to process the toxic items in the garage and loft. This Team found and seized items commonly used to manufacture methamphetamine.
Campbell was arrested, taken into custody, and transported to jail. Another deputy found a baggie of methamphetamine where Campbell had been sitting in the backseat of the patrol car.
II. Procedure
The State charged Campbell with one count of unlawful manufacturing of a controlled substance methamphetamine and one count of unlawful possession of a controlled substance methamphetamine.
Campbell moved to suppress evidence discovered in the loft, arguing that the police were using Drath's CCO to circumvent the warrant requirement and that the police were required to obtain a search warrant or to give Ferrier warnings to Drath and him before conducting a search of the residence. At the CrR 3.6 hearing, CCO McDonough testified that he had gone to the residence to speak with Drath about her failure to perform community service hours, not to help search for a possible methamphetamine lab. Deputy Papen testified that the sheriff's deputies went to the residence to follow up on the email complaint about a possible methamphetamine lab and `[t]o assist the Department of Corrections with following up on their probation matters.' RP at 53.
The trial court denied Campbell's motion to suppress. The court found that CCO McDonough and Deputy Papen had gone to the residence for legitimate purposes and that Deputy Papen did not go to the residence for the purpose of conducting a search for evidence. The court ruled that Ferrier warnings were not required under these circumstances and that CCO McDonough had reasonable cause to believe that Drath had violated at least one condition of probation before he searched the loft.
Although the trial court did not make any express findings of witness credibility, we note that its findings of facts largely mirror the suppression hearing testimony of CCO McDonough and the CST staff officers.
After a trial on stipulated facts, the court convicted Campbell as charged. Campbell appeals.
In stipulating to facts sufficient to support the convictions, Campbell reserved the right to challenge the suppression hearing on appeal.
ANALYSIS
Campbell argues that the trial court erroneously denied his motion to suppress because the police were required to administer Ferrier warnings as part of the `knock and talk' procedure before entering the loft and conducting a search of the residence. This argument fails.
I. Standard of Review
We review the trial court's denial of a motion to suppress to determine whether substantial evidence supports the factual findings and, if so, whether the findings support the conclusions of law. State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997). We review the trial court's conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
We review only those findings of fact to which error has been assigned; unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). If substantial evidence supports the challenged findings of fact, those findings are also binding on appeal. Id at 647. `Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.' Hill, at 644. Where findings of fact and conclusions of law are supported by substantial but disputed evidence, we will not disturb the trial court's ruling. State v. Smith, 84 Wn.2d 498, 505, 527 P.2d 674 (1974). Credibility determinations are for the trier of fact and not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
II. Findings of Fact
As a preliminary matter, Campbell specifically assigns error to Undisputed Finding of Fact Number 19, which states: `While they [Campbell and Papen] were talking outside the garage, Deputy Papen could smell a chemical odor that was consistent with the odor he had smelled at many clandestine methamphetamine labs before.' Clerk's Paper's (CP) at 35 (emphasis added). Deputy Papen testified, `While Campbell was in the garage, the door was open and while I am standing outside the garage door, I could smell chemical solvents odor.' RP at 34-35. Thus, as the State properly concedes, the finding should have begun `while Deputy Papen was waiting outside the garage,' he could smell a chemical odor that was consistent with the odor he had smelled at many clandestine methamphetamine labs before. Br. of Resp't at 13 (emphasis added).
We agree with the State, however, that this slight discrepancy is harmless because it has little or no relevance to the suppression issue. First, the critical fact is that Deputy Papen smelled and recognized the methamphetamine manufacturing odor from a vantage point just outside the garage door, not whether Campbell was outside or inside the garage at the time. Second, and more importantly, this odor was not the basis for the initial entry or search; rather, it was Drath's probation violation and her consent to enter, with Campbell's concurrence. See Br. of Resp't at 14.
Campbell also specifically assigns error to the finding on Disputed Fact Number 1, which states: `CCO McDonough went to the residence of Stephen Campbell and Cora Gallant to speak with Cora Gallant about her suspected probation violation.' CP at 36. Substantial evidence and another unchallenged finding of fact both support this finding. First, CCO McDonough testified that he went to the residence to speak with Drath about her failure to perform her required community service hours. Campbell challenged CCO McDonough's testimony by asking, `[T]he reason you actually went out there was to aid the officers in the search for the alleged meth lab information they received from the drug tip line; isn't that correct?' McDonough replied, `No, that's not true.' RP at 85. The trial court obviously believed McDonough, a credibility determination that we do not second guess on appeal.
See n. 5.
Second, unchallenged undisputed Finding of Fact Number 11 states: `CCO McDonough decided to go along with members of the CST to speak with Cora Gallant about her suspected probation violations.' CP at 34. This unchallenged finding not only includes the trial court's implicit belief in CCO McDonough's testimony, but it is also a verity on appeal. This finding, supported by CCO McDonough's credible testimony, supports the trial court's finding on Disputed Fact Number 1.
III. Lawful Entry Without Ferrier Warnings
In State v. Ferrier, 136 Wn.2d 103, 118-19, 960 P.2d 927 (1998), our Supreme Court adopted the following rule:
[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.
(Emphasis added). The Supreme Court has clarified that the Ferrier requirement is limited to situations where police request entry for the purpose of obtaining consent to conduct a warrantless search for contraband or evidence of a crime. State v. Khounvichai, 149 Wn.2d 557, 563, 566, 69 P.3d 862 (2003).
In Khounvichai, the Court recognized, `[T]here is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes.' 149 Wn.2d at 564. The Court reasoned that it would not be prudent or necessary to require that police officers warn citizens of the right to refuse consent to search when they request entry into a home merely to question or gain information from an occupant. Such an extension of Ferrier does not further the constitutional reasons for the warnings and may unnecessarily frustrate police investigations.
The Court has also held that Ferrier warnings were not required where (1) police requested consent to enter a home to arrest a visitor on a valid arrest warrant, State v. Williams, 142 Wn.2d 17, 28, 11 P.3d 714 (2000); (2) police and an Immigration and Naturalization Service agent gained consensual entry into defendant's home to serve a presumptively valid deportation order, State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999); and (3) police sought entry into a home to question a resident in the course of investigating a crime. Khounvichai, 149 Wn.2d at 559.
Khounvichai, 149 Wn.2d at 566. Moreover, a police officer or parole officer may conduct a warrantless search of a probationer's residence where there is a well founded suspicion that a probation violation has occurred. State v. Patterson, 51 Wn. App. 202, 204, 752 P.2d 945 (1988); RCW 9.94A.631. Such is the case here.
As we have discussed above, CCO McDonough lawfully went to the residence to discuss Drath's probation violation. In addition, the trial court entered an unchallenged finding of fact that `Deputy Papen and the members of the Community Support Team went to the residence to speak with Gallant [Drath] about the complaint of illegal drug activity they had received.' CP at 36. Both the CCO and the police officers had independent, legitimate reasons for pursuing an investigatory conversation with Drath. Thus, they were not required to administer Ferrier warnings before seeking consent to enter the loft. Khounvichai, 149 Wn.2d at 559.
Moreover, it is undisputed that Deputy Papen asked for permission and was invited into the loft before either he or CCO McDonough actually entered. Once inside the loft, they noticed drug paraphernalia in plain view, and Drath admitted to having used drugs the previous night and having drugs in the loft. After receiving permission from his supervisor based on reasonable suspicion that a probation violation had occurred, CCO McDonough conducted a search and discovered the plate with drugs.
Looking through the hatch door to the garage below, the officers later saw, in plain view, a tub, which Drath admitted contained materials used to manufacture methamphetamine. At this point, Deputy Papen asked Drath and Campbell to sign a consent to search form, and they both did so. Papen then called the CLT, which processed the scene and seized the methamphetamine lab.
The CLT's garage search, pursuant to the signed consent forms, has no bearing on this appeal, which focuses on Campbell's argument that the trial court should have suppressed evidence based on an alleged Ferrier violation. He does not separately challenge the consent forms, except as they were derived from what he argues, and we reject, was the unlawful entry into the loft.
We hold, therefore, that (1) the trial court properly denied Campbell's motion to suppress because Ferrier warnings were not required under the circumstances; and (2) the officers legally searched the loft without a warrant based on reasonable suspicion that Drath had violated her probation.
Affirmed.
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 VAN DEREN, A.C.J., concur.