Opinion
No. 22821-5-III
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 01-1-01025-9. Judgment or order under review. Date filed: 02/20/2004. Judge signing: Hon. Carolyn A. Brown.
Counsel for Appellant(s), Sharon Marie Brown, Attorney at Law, PO Box 2173, Hillsboro, OR 97123-2173.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
Nathaniel Davenport was charged with possession of a controlled substance with intent to deliver based upon materials found in his backpack during an investigatory vehicle stop. His motion to suppress the evidence was denied and the court convicted him as charged on stipulated facts. On appeal, Mr. Davenport contends evidence found in the backpack should have been suppressed because (1) there were not any specific and articulable facts to justify the vehicle stop; and (2) there was not any independent, articulable, and lawful reason to search the backpack. We affirm.
FACTS
On November 19, 2001, Officers Davis and Trujillo of the Kennewick Police Department responded to a call concerning a vehicle prowl. The caller stated that the vehicle prowl involved two vehicles, a blue Honda and a pickup truck, located at the Highlander Apartments parking lot. The caller identified the prowler as a white, teenage male with a backpack.
When the officers arrived, they saw a vehicle leaving the parking lot. The vehicle had three passengers. Two of the passengers were white teenage males. The officers stopped the vehicle and spoke with the passengers. Officer Davis told the passengers that he was investigating a vehicle prowl that had just taken place at the Highlander Apartments. The passengers acknowledged that they had just left the Highlander Apartments.
Nathaniel Davenport was one of the passengers in the stopped vehicle. Using a flashlight, Officer Davis looked into the vehicle and saw what appeared to be a backpack positioned between Mr. Davenport's legs. When Officer Davis asked if the item was a backpack, Mr. Davenport initially denied that it was a backpack. He subsequently changed his story and admitted that it was a backpack and that he owned it.
Mr. Davenport told Officer Davis that 'he was more than willing to open the backpack and show Officer Davis the contents.' Clerk's Papers (CP) at 17. He opened the backpack and showed Officer Davis its contents. The officer saw vegetable matter in the backpack that he believed to be marijuana. Officer Davis asked Mr. Davenport to give him the backpack. Mr. Davenport was taken into custody. The officers searched the backpack and found a scale, a box of sandwich bags, bags filled with what appeared to be marijuana, and $100 in cash. The substance was later identified as marijuana.
Mr. Davenport was charged with possession of marijuana with intent to deliver. His motion to suppress was denied. On stipulated facts, the trial court found him guilty of possession of marijuana with the intent to deliver. He appeals.
ANALYSIS
Motion to Suppress. Mr. Davenport believes that the contents of the backpack are inadmissible. First, he insists that the initial stop was illegal because there was insufficient justification to stop the vehicle. Next, Mr. Davenport contends that the Terry stop was illegal because there was not any specific and articulable facts warranting his detention. Finally, he argues that the police overstepped their authority in searching the backpack because there was no independent, articulable, and lawful reason to search the backpack.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Standard of Review. In reviewing a suppression hearing, an appellate court determines whether substantial evidence supports the court's findings of fact. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Findings of fact that are not assigned error are viewed as verities on appeal. RAP 10.3(g); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Findings are also viewed as verities if there is substantial evidence to support the findings. State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993). '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, 123 Wn.2d at 644. Conclusions of law are reviewed de novo. Mendez, 137 Wn.2d at 214.
Warrantless Search. Under the Washington Constitution, article I, section 7, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." State v. Goucher, 124 Wn.2d 778, 782, 881 P.2d 210 (1994). '[W]arrantless searches are per se unreasonable unless they fall under a specific exception to the warrant requirement.' State v. Turner, 114 Wn. App. 653, 657, 59 P.3d 711 (2002). The exceptions are limited and narrowly drawn and the burden is on the State to establish that the search falls within one of them. Id.
Reasonable Suspicion to Stop. A warrantless investigatory Terry stop may occur when the officer has a well-founded suspicion of criminal activity based on specific and articulable facts. State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982), overruled on other grounds sub nom. State v. Cerrillo, 89 Wn. App. 1014 (1998). There must be sufficient facts to establish the substantial possibility that criminal conduct has occurred. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986).
In this case, there was a well-founded suspicion of criminal activity. The police were notified by a citizen that a white male with a backpack was going through cars in the Highland Apartments parking lot. When the police arrived, they discovered a vehicle exiting the parking lot. In that vehicle, there was a suspect matching the description of the vehicle prowler.
Mr. Davenport insists that the vehicle was pulled over because he was white and that race is an insufficient basis with which to form a suspicion of criminal activity. In particular, he mentions that merely being a person of any race who is out of place in a particular area cannot be a basis for suspecting criminal behavior. State v. Barber, 118 Wn.2d 335, 346, 823 P.2d 1068 (1992). But the vehicle was not pulled over merely because Mr. Davenport was white. Instead, it was pulled over because there was reasonable suspicion that the vehicle may have been involved in criminal activity. In conclusion, there was reasonable suspicion to stop the vehicle.
Open View. Under the open view doctrine, contraband that is viewed when an officer is standing at a lawful vantage point is not protected. State v. Neeley, 113 Wn. App. 100, 109, 53 P.3d 539 (2002). In short, if an officer is lawfully present at a vantage point and detects something by using one or more of his or her senses, no search has occurred. Id. (quoting State v. Cardenas, 146 Wn.2d 400, 408, 47 P.3d 127 (2002)). The open view exception applies to contraband that an officer sees from outside the window of a vehicle. Neeley, 113 Wn. App. at 109 (quoting State v. Lemus, 103 Wn. App. 94, 103, 11 P.3d 326 (2000)); see also Kennedy, 107 Wn.2d at 10. It includes items that an officer sees on the floorboards in the backseat of the vehicle. State v. Brown, 232 Neb. 224, 228, 439 N.W.2d 792 (1989); State v. Mitchell, Nos. 97-KA-2774; 98-KA-1128, 98-KA-1129 (La.App. 4 Cir. 2/3/99); see also State v. O'Neill, 148 Wn.2d 564, 582, 62 P.3d 489 (2003). In addition, an officer may use a flashlight at night to show what would be plainly visible during the day. O'Neill, 148 Wn.2d at 578. Here, Officer Davis saw the backpack from the window of the vehicle and his behavior did not constitute a search. In conclusion, Officer Davis's view of the backpack is admissible under the open view doctrine.
Plain View. Under the plain view doctrine, items that an officer sees in plain view are admissible if the officer has intruded into an area where there is a reasonable expectation of privacy. Id. at 582. The officer must have had a prior justification for the intrusion and the items must immediately be recognized as contraband. Id. at 583. Here, by opening the backpack, Mr. Davenport placed the marijuana in plain view of Officer Davis. In conclusion, the contents of the backpack are admissible under the plain view doctrine.
Probable Cause to Arrest. An officer may arrest a suspect when he has probable cause to believe that the suspect has committed, or is about to commit, a felony. State v. McClung, 66 Wn.2d 654, 659, 404 P.2d 460 (1965) (quoting State v. Darst, 64 Wn.2d 808, 811, 399 P.2d 618 (1965)). Here, Mr. Davenport displayed marijuana in plain view of Officer Davis.
Possession of a controlled substance is a felony. See former RCW 69.50.401(d) (1998). In conclusion, Officer Davis had probable cause to believe that Mr. Davenport had committed the felony of possession of a controlled substance when Officer Davis took Mr. Davenport into custody. Search Incident to Arrest Exception. An officer may make a warrantless search incident to a lawful custodial arrest. State v. Garcia, 35 Wn. App. 174, 175, 665 P.2d 1381 (1983) (quoting State v. Carner, 28 Wn. App. 439, 444, 624 P.2d 204 (1981)). The officer can search the passenger compartment of the vehicle and all containers inside it. State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (citing New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). Here, Mr. Davenport was arrested and Officer Davis searched Mr. Davenport's backpack. The backpack was located within the passenger compartment of the vehicle. In conclusion, the contents of the backpack are admissible under the search incident to arrest exception.
Scrivener's Error in Judgment and Sentence. Finally, we note an apparent scrivener's error in Mr. Davenport's judgment and sentence that occurred during the sentencing proceeding. Instead of showing that he was convicted of possession of marijuana with intent to deliver under RCW 69.50.401(a), it shows that he was convicted of 'MCS-marijuana' under RCW 69.50.401(a). But a review of the record shows he was never charged with manufacturing — only possession with intent to deliver, for which he was convicted on stipulated facts that bear no reference to manufacturing.
CP at 7.
We affirm Mr. Davenport's conviction, but remand to correct the scrivener's error in his judgment and sentence.
The 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.
KATO, C.J. and SCHULTHEIS, JJ., Concur.