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State v. Fondue

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1025 (Wash. Ct. App. 2011)

Opinion

No. 64554-4-I.

Filed: March 7, 2011.

Appeal from a judgment of the Superior Court for King County, No. 09-1-04882-3, Helen Halpert, J., entered December 2, 2009.


Affirmed by unpublished opinion per Lau, J., concurred in by Cox and Appelwick, JJ.


Juan Fondue challenges his conviction for possession of cocaine. He argues the trial court erred in denying his motion to suppress evidence following a search incident to his arrest pursuant to a felony escape arrest warrant. Following State v. Williams, 142 Wn.2d 17, 24, 11 P.3d 714 (2000), we conclude that his arrest was lawful and the search incident to the arrest was proper. We accordingly affirm.

FACTS

The following facts were found by the trial court after a contested suppression hearing and are not challenged on appeal. On July 13, 2009, Seattle police officers were dispatched to the home of Pedro Leal based an anonymous report that Fondue was present at the house. Fondue is a felon considered dangerous by the Department of Corrections (DOC). At the time, Fondue had an outstanding arrest warrant for felony escape. The officers obtained a photograph of Fondue to verify his identity and proceeded to Leal's residence.

Officers Larry Longley and Paul Ducre approached the front door, while another officer covered the back door. The officers contacted Leal at the front door. From outside the doorway, they asked if Fondue was present. Leal told them that only he and two women were present. However, while they were talking, Officer Ducre could see Fondue in the kitchen. Leal walked back into the house. Without obtaining his permission, the officers followed him inside and went directly to the kitchen. Fondue gave the name Michael Johnson, but the officers nonetheless placed him under arrest on the warrant and removed him from the house. Once outside, Fondue admitted he knew of the warrant and gave his correct name. The police then searched him incident to his arrest and found cocaine in his pocket.

Fondue moved to suppress the cocaine as the fruit of an illegal arrest. The trial court denied his motion, and Fondue was thereafter convicted at a stipulated trial. Fondue received a standard range sentence and now appeals.

ANALYSIS

Fondue argues that the trial court erred in denying his motion to suppress evidence obtained without lawful authority. When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Conclusions of law are reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).

Specifically, Fondue contends the trial court erred as a matter of law in concluding that the officers' entry into the house to arrest him was lawful. He relies primarily on a series of cases addressing the propriety of an entry and search of a person's home pursuant to an arrest warrant for a third party who is thought to be on the premises. See State v. Anderson, 105 Wn. App. 223, 231, 19 P.3d 1094 (2001); State v. Hatchie, 161 Wn.2d 390, 392-93, 166 P.3d 698 (2007); Steagald v. United States, 451 U.S. 204, 213, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). These cases establish the rule that evidence the State seeks to use against a homeowner obtained during such a search will be suppressed unless the police have probable cause to believe that the third party who is the subject of the arrest warrant is not only present, but is an actual resident of the home. Hatchie, 161 Wn.2d at 392-93.

In the present case, however, the evidence was obtained from Fondue's person after he was arrested as the subject of the arrest warrant and was not used against the homeowner. As the State contends, our State Supreme Court relied on this distinction in Williams, a case involving similar circumstances to this case.

We note that one of the facts that was disputed at the suppression hearing, but not resolved by the trial court, was the exact contents of the tip. The State maintains that the tip included the information that Fondue was living at Leal's house. The defense, on the other hand, argues that the record showed only that the tip reflected that Fondue was present at the house at that time. Because of the result it reached and the analysis it employed, the trial court did not resolve this dispute. And because of the result we reach, as discussed below, it is not necessary for us to remand for the trial court for additional findings on this point. The parties also disputed in the trial court whether the officers saw that Fondue was present before entering Leal's house. The trial court did affirmatively resolve that dispute in the State's favor, however, and Fondue has not challenged that finding, which accordingly is a verity for our purposes on review. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997)

In Williams, police received a tip that the defendant, who had a warrant for his arrest, was currently at a particular apartment. Police contacted the renter, who claimed not to know the defendant and who granted permission to search the premises without being advised of all necessary warnings under State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). After entering the apartment, police located the defendant and discovered heroin on his person in a search incident to arrest. The trial court later held the arrest invalid and suppressed the heroin because the police officers failed to inform the tenant of his right to refuse consent, reasoning that the defendant possessed automatic standing to challenge the entry of the apartment as violative of the renter's rights.

The Supreme Court reversed, holding first that the defendant lacked standing to object to the entry of the premises. Williams, 142 Wn.2d at 23. More important here, however, was the court's further holding that even if the defendant had an expectation of privacy in the renter's apartment to confer actual standing in his own right, there still was no requirement that the police have probable cause to believe he resided at the apartment to establish the lawfulness of the entry and arrest:

The United States Supreme Court has held that an arrest warrant "authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home." Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). The Court further held in Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639 (1980), that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." The Court reasoned that

an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate's determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law.

Id. at 603. Thus, even if Williams had standing in his own right, he would be unable to successfully challenge a police entry of his own home to serve an arrest warrant. We find no reason to confer additional privacy protections to suspects who are arrested in other persons' homes. We agree with the Ninth Circuit's observation that "[i]f an arrest warrant and reason to believe the person named in the warrant is present are sufficient to protect that person's fourth amendment privacy rights in his own home, they necessarily suffice to protect his privacy rights in the home of another." United States v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983).

Williams, 142 Wn.2d at 23-25 (footnotes omitted, second emphasis added).

Here, there was no challenge to the lawfulness of the arrest warrant, and the record establishes that the officers were aware of Fondue's presence in the home before they entered. Accordingly, regardless of Fondue's contention that he possessed an expectation of privacy in Leal's house as an overnight guest, the arrest was proper under Williams and the trial court properly denied the motion to suppress.

Fondue makes no attempt to distinguish Williams and, in fact, does not discuss it at all. He nonetheless argues that regardless of whether he had standing, automatic or otherwise, this court should find the entry unlawful and suppress the evidence to protect the privacy of all citizens of this state. For this proposition, he relies on State v. Winterstein, 167 Wn.2d 620, 220 P.3d 1226 (2009). We find this argument unpersuasive for several reasons.

We note that Williams was cited and discussed in the trial court during the motion to suppress.

First, Winterstein involved the propriety of a search based on a statute, RCW 9.94A.631, not an arrest warrant, as is the case here and was also the case in Williams. Winterstein, 167 Wn.2d 620, 629. Moreover, the search in Winterstein involved what the DOC asserted was its right to search a probationer's residence when he was not present, while the key, unchallenged finding of the trial court here was that the officers knew Fondue was present before they entered. Winterstein, 167 Wn.2d 620, 629. Finally, the entire basis for Fondue's argument that Winterstein dispensed with all standing requirements is that the Supreme Court failed to discuss standing in its opinion. But that appears to be the case simply because no issue of standing was raised by the parties. We are satisfied that if the Supreme Court had meant to dispense with all standing requirements, thereby effectively overruling Williams and a host of other cases, it would have affirmatively said so, and that Winterstein is properly distinguished here.

We find no error in the denial of the motion to suppress and accordingly affirm.

Because of the result we reach, it is unnecessary for us to address the State's alternative ground affirming the trial court based on exigent circumstances.

WE CONCUR:


Summaries of

State v. Fondue

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1025 (Wash. Ct. App. 2011)
Case details for

State v. Fondue

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. JUAN JOSE FONDUE, a/k/a MICHAEL…

Court:The Court of Appeals of Washington, Division One

Date published: Mar 7, 2011

Citations

160 Wn. App. 1025 (Wash. Ct. App. 2011)
160 Wash. App. 1025