Opinion
Nos. 57059-5-I; 57139-7-I.
April 9, 2007.
Appeals from judgments of the Superior Court for Whatcom County, Nos. 05-1-00654-7 and 05-1-00655-5, Ira Uhrig, J., entered September 27, 2005.
Affirmed by unpublished opinion per Coleman, J., concurred in by Agid and Becker, JJ.
Martin Freeman and Robert Garza were both charged with possession of a controlled substance (cocaine) with intent to deliver and tried jointly. Freeman was convicted of the charged crime, and Garza was convicted of the lesser-included crime of possession of a controlled substance. In a consolidated appeal, they argue that the trial court erred in admitting the cocaine and that instructional errors require reversal. Freeman also challenges the sufficiency of the evidence supporting his conviction. We conclude that the cocaine was properly admitted as the fruit of a lawful search, that any instructional errors were harmless, and that there was sufficient evidence in the record to permit the jury to convict Freeman. Accordingly, we affirm.
FACTS
In April 2005, a friend of Bhupinder Kumar called the Bellingham police to report that Kumar had been using crack cocaine and his friend was worried. Officer Jay Hart went to Kumar's home to inquire if Kumar needed any help and found Kumar sitting in his car in his driveway. Hart and Kumar talked at length about Kumar's drug problems, and Kumar admitted that he had been using crack and had run out. Kumar said he had been planning to go out to buy some more, but assured Hart that he would not buy more. Hart offered to take Kumar to detox at the hospital, but Kumar declined. Hart then returned to his patrol car. Hart thought over what Kumar had said for a couple of minutes and decided to go back to the driveway to talk with Kumar again. He found Kumar still in his car, but talking on a cell phone. Hart could not hear any of the conversation. Kumar asked Hart to leave because he was expecting company. Hart asked Kumar to identify his guests and explain why they were coming, but Kumar did not elaborate. Hart testified that he believed Kumar's guests were coming to deliver drugs. He returned to his patrol car and drove around the block. He parked about a block away and waited to see who arrived at Kumar's.
About five or ten minutes later, Hart saw a van pull into Kumar's driveway. Hart suspected that Kumar was going to buy drugs from the van's occupants. Garza got out of the driver's side of the van and walked toward Kumar's house. Hart drove around the block again and parked in the same place he parked earlier. He walked to Kumar's driveway and saw Kumar talking to whoever was in the van's driver's seat.
Hart observed Garza sitting in the driver's seat and testified that Garza looked nervous. Garza was shaking his right arm, but Hart could not see what he was doing with his hand. Garza's voice wavered as he talked with Hart. Hart testified that he was concerned about the situation because Garza could be either trying to destroy evidence in the van or could be concealing a weapon. Hart also noticed that the entire van was shaking, which led Hart to believe there was a passenger moving in the back portion of the van.
Hart asked Garza to step out of the van, and Garza complied. As Hart stood next to the van, he looked in one of the windows behind the driver's side door and saw a hand trying to hide a glass pipe — which Hart immediately recognized as a crack pipe — under a seat behind the driver's seat. Hart told Garza to ask the person in the van to step out, and Freeman exited the driver's side door. Hart asked if he could enter the van to retrieve the pipe, and Garza refused to let him enter the van. Garza told Hart that he would get the pipe, and he entered the van through the passenger side.
Hart stood near the open passenger door to keep visual contact with Garza because he was concerned that Garza could destroy evidence or obtain a weapon. As Hart directed Garza toward the pipe under the seat, he noticed a baggie containing what he immediately recognized as crack cocaine also under the seat. Hart ordered Garza to get the baggie as well, and Garza complied.
Hart then performed a warrants check for both Garza and Freeman. Garza initially told Hart his name was Robert Peterson and gave a false birth date. Hart could not locate a person with that name and birth date, and Garza explained that he had a Canadian driver's license. Hart recognized Freeman from previous contacts, but verified his name. Freeman's record showed outstanding warrants, and Hart arrested Freeman. As a search incident to Freeman's arrest, Hart searched the van and discovered Garza's wallet with identification. Hart asked Garza if the wallet and identification were his, and Garza admitted that they were. Hart used Garza's correct name for a warrants check, and the check revealed that he had an outstanding warrant. Hart then arrested Garza.
After both Garza and Freeman were in custody, police continued to search the van and discovered $590 in cash, a box of baking soda, a red bag with 15 grams of powder cocaine, a digital scale, and notes with Freeman's name written on them. Freeman and Garza were charged by joint information with one count of possession of a controlled substance with intent to deliver. After a suppression hearing and trial, a jury convicted Freeman of possession with intent to deliver, and Garza of the lesser-included crime of possession. Freeman and Garza timely appealed.
Analysis
Hart's Entry onto Kumar's Property
Garza acknowledges that Hart had the right to enter Kumar's driveway to talk with him, but argues that when Kumar asked Hart to leave because he was expecting guests, Hart's express request terminated Hart's right to enter the driveway. Thus, Garza argues, because Hart did not have the right to be in Kumar's driveway, everything he discovered while there should have been suppressed.
"[P]olice with legitimate business may enter areas of the curtilage [of a private residence] which are impliedly open, such as access routes to the house. . . . An officer is permitted the same license to intrude as a reasonably respectful person." State v. Seagull, 95 Wn.2d 898, 902-03, 632 P.2d 44 (1981) (footnote omitted).
Garza relies on State v. Bellerouche, 129 Wn. App. 912, 120 P.3d 971 (2005) for the proposition that an implied right to enter a curtilage can be expressly revoked. There, the defendant entered an apartment complex driveway after being served with a written notice to stay off that property. Bellerouche argued that, like a police officer on legitimate business, he had the right to enter property that is impliedly open to the public. But the court stated that a "person's presence [on private property] may be rendered unlawful by a revocation of the privilege to be there. This right to exclude exists even if the property is otherwise open to the public." Bellerouche, 129 Wn. App, at 915-16 (footnote omitted). Bellerouche's case was different from search and seizure cases because he "was not a police officer on official business, and unlike the officers in these cases, Bellerouche had been served with a notice to stay off the property in question." Bellerouche, 129 Wn. App. at 916.
It is clear that because Hart was on official business when he initially contacted Kumar, he had the right to enter Kumar's driveway. At the end of their second conversation, Kumar did ask Hart to leave because he was expecting guests, but this request did not terminate Hart's right to enter in the future. This request ended that conversation, but it certainly did not suggest that Hart's right to enter was permanently terminated. We note that Kumar was in the driveway as Hart approached the van, but he did not instruct him to leave or remind him of his earlier request, and this further supports an interpretation of Kumar's request as not permanent.
But even if Hart's right to enter had been permanently terminated by Kumar's request, Garza does not have standing to object to an improper entry onto Kumar's property. See State v. Smith, 104 Wn.2d 497, 509, 707 P.2d 1306 (1985). Garza claims that he has automatic standing to challenge Hart's entry on Kumar's property, but the cases indicate that automatic standing does not apply here.
"To assert automatic standing a defendant (1) must be charged with an offense that involves possession as an essential element; and (2) must be in possession of the subject matter at the time of the search or seizure." State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). A defendant can invoke automatic standing only if the challenged police action produced the evidence offered against him or her. Jones, 146 Wn.2d at 332. The Supreme Court explained that this required nexus between challenged action and discovery of evidence.
In [State v.] Williams, 142 Wn.2d [17, 23, 11 P.3d 714 (2000)] the defendant challenged an officer's entry into a third party's residence. The contraband at issue was discovered during a search of the defendant pursuant to an arrest warrant. Williams argued that he was entitled to rely on automatic standing to challenge entry into the third party's residence. This court disagreed, finding an insufficient nexus between the contraband found during a search of the defendant's person incident to his arrest on a warrant, and the officer's entry into the third party's apartment.
Williams was denied automatic standing because the challenged police action in that case, an officer's entry into a third party's residence, was not the action that resulted in a search. Rather, the entry facilitated the defendant's arrest on a valid arrest warrant. The search which revealed contraband was conducted incident to that arrest. In other words, the arrest, not the entry, led to the discovery of evidence which supported the subsequent possession charge. Williams was not placed in the position of having to claim ownership of contraband or admit to any criminal conduct to challenge the search of his person. Indeed, his possession of contraband was wholly unrelated to whether police lawfully entered a third party's apartment. Williams merely reiterated the premise underlying automatic standing that the rule is limited to situations where a defendant faces the risk that statements made at a suppression hearing will be used against him later as impeachment evidence. Automatic standing is not a "vehicle to collaterally attack every police search that results in a seizure of contraband or evidence of a crime." Williams, 142 Wn.2d at 23.
Jones, 146 Wn.2d at 333-34. Like Williams, Garza does not have automatic standing because Hart's entry onto Kumar's driveway — the challenged police action — did not produce the evidence offered against Garza. And this is not a situation where Garza has to claim ownership of the cocaine in order to challenge the search. We conclude that Garza does not have automatic standing to challenge Hart's entry onto Kumar's property and consider instead whether the search and seizure itself was proper.
Investigatory Detention
Freeman and Garza argue that because Hart detained them without a constitutionally adequate justification, the detention was improper and the cocaine should have been suppressed as fruit of a poisonous tree.
While probable cause is generally a prerequisite to a lawful search and seizure, there are narrowly drawn exceptions to this rule. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Broadnax, 98 Wn.2d 289, 654 P.2d 96 (1982). "It is generally recognized that crime prevention and crime detection are legitimate purposes for investigative stops or detentions." State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986). An investigatory detention short of an arrest may be made on less than probable cause if an officer has a reasonable suspicion — based on specific, articulable facts — that an individual is involved in criminal conduct. State v. Thompson, 93 Wn.2d 838, 840-41, 613 P.2d 525 (1980).
An officer can perform a protective frisk for weapons during an investigatory stop if he or she has a reasonable suspicion that a person is armed and dangerous. State v. Larson, 88 Wn. App. 849, 853-54, 946 P.2d 1212 (1997). The officer need not be absolutely certain that an individual is armed, but a frisk is justified if a reasonably prudent person under the circumstances would reasonably believe that his or her safety was in danger. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). The fact that an officer does not frisk an individual does not necessarily imply that an officer is not concerned about his or her safety. See Kennedy, 107 Wn.2d at 11.
In Kennedy, an officer saw a man parked in a car near a house, and he had been previously informed that the car's owner regularly bought marijuana from that house's occupant. Neighbors had also complained to police about frequent visitors to the house. The officer watched the man drive away and then pulled him over on suspicion of marijuana possession. After the officer signaled for the man to pull over, the man leaned forward, gesturing as if he had put something under his seat. The officer asked the man to get out of the car and to remove whatever was under his seat. The item under the seat was a bag of marijuana.
The court found the initial stop of the car to be valid because of the tips the officer had received and the officer's experience with drug investigations. Kennedy, 107 Wn.2d at 8-9. These were specific facts giving rise to a reasonable suspicion of criminal activity. Because the court concluded that the initial stop was lawful, it also concluded that the officer was justified in asking the defendant to exit the car. And the court concluded that the search of the car — that revealed the marijuana — was justified because the officer had seen the defendant make a furtive gesture under his seat and reasonably believed that the defendant was hiding a weapon there. The court noted that the officer could have frisked the defendant if he had reasonably believed he was armed, but the articulable facts in this case — the furtive gesture under the driver's seat — justified the search of the car, rather than a frisk. Kennedy, 107 Wn.2d at 9.
Likewise here, Hart had an articulable suspicion of criminal activity that justified his initial detention of the van. Kumar had admitted to cocaine use, and Hart was skeptical that he would stop using as promised. His initial conversation with Garza did not amount to a detention, but Hart's observation of Garza's furtive hand movements in the car gave rise to a reasonable suspicion that Garza was hiding a weapon in the car. Because of this reasonable suspicion based on articulable facts, Hart was justified in asking Garza to exit the van — at which point Garza was no longer free to leave, and an investigatory detention had begun. We conclude that this initial investigatory detention was justified by Hart's reasonable suspicions.
Once Hart had detained Garza, he then noticed a person inside the van moving a pipe that he immediately recognized as drug paraphernalia. The State argues that this observation was in "open view" and, thus, does not constitute a search. "`[O]pen view' involves an observation from a nonconstitutionally protected area. Hence, if an officer, after making a lawful stop, looks into a car from the outside and sees a weapon or contraband in the car, he has not searched the car." Kennedy, 107 Wn.2d at 10 (citation omitted). Garza and Freeman argue that the "open view" doctrine does not apply because Kumar's driveway was constitutionally protected because he had revoked Hart's implied right to enter. This argument was addressed above, and we reject it for the reasons stated there. Because Hart had the right to enter Kumar's driveway and the contraband crack pipe was visible from the driveway through the van window, we conclude that Hart's observation of the crack pipe did not amount to a search because the pipe was in open view.
This observation led Hart to request that Freeman exit the car — at which point he was not free to leave and therefore seized — and that the crack pipe be removed from the car. The crack pipe was properly seized because it had been observed in open view. Hart's visual contact with Garza during the removal of the crack pipe, however, constitutes a search because he was observing parts of the van not visible in open view. Hart testified that he leaned into the van to watch Garza retrieve the crack pipe because he was concerned that Garza would access a weapon — particularly given the fact that, in his experience, drug dealers often carry weapons — or destroy evidence while in the car. Because the officer pointed to specific facts that led him to be concerned for his safety while Garza was in the van, we conclude that Hart's visual search of the van during Garza's retrieval was justified. The bag of cocaine observed by Hart was therefore properly seized because it was found during a lawful search.
Freeman and Garza argue that Hart's visual contact with Garza was not justified by safety concerns because if Hart had been truly concerned about his safety, he would not have permitted Garza to re-enter the van or he would have frisked Garza beforehand. But Hart suspected not that Garza was concealing a weapon on his person (which could have been detected in a frisk), but that there was a weapon in the van — and he testified that because of this suspicion, he maintained visual contact with Garza while he was in the van. His concern for safety — based on his observation of Garza moving his arm around inside the van, which led Hart to believe that Garza may have concealed a weapon in the vehicle, and his experiences with drug dealers carrying weapons — justifies the visual search of the van. This search revealed the bag of cocaine, and we conclude that it was properly admitted as the fruit of a lawful search.
The State also argues that, alternatively, the cocaine would have been inevitably discovered and is admissible on that ground. Because we conclude that the search and seizure was lawful, we need not reach this alternative argument.
Sufficiency of the Evidence
Freeman argues that the State did not present sufficient evidence that Freeman had dominion and control over the van, and his mere proximity to the cocaine could not support a finding of constructive possession.
A possession charge may be based on actual or constructive possession. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). "Actual possession is proved when the drugs are found to be in the actual, physical custody of the person charged with possession. Constructive possession is proved when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs were found." State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971) (citing State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)).
In Callahan, police lawfully searched a houseboat and found the defendant, a guest of the houseboat's resident, and various drugs scattered throughout the residence. The defendant admitted he had handled the drugs earlier in the day, but stated that although he had a few personal items on the houseboat, he did not live there. The defendant was convicted of possession, but the conviction was reversed on appeal. The court reasoned that there was insufficient evidence that the defendant had dominion and control over the drugs or the houseboat.
Since the drugs were not found on the defendant, the only basis on which the jury could find that the defendant had actual possession would be the fact that he had handled the drugs earlier and such actions are not sufficient for a charge of possession since possession entails actual control, not a passing control which is only a momentary handling.
Consequently, the validity of the defendant's conviction rests on whether there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant had constructive possession of the drugs. There must be substantial evidence to show that he had dominion and control over the drugs.
. . . .
Although there was evidence that the defendant had been staying on the houseboat for a few days there was no evidence that he participated in paying the rent or maintained it as his residence. Further, there was no showing that the defendant had dominion or control over the houseboat. The single fact that he had personal possessions, not of the clothing or personal toilet article type, on the premises is insufficient to support such a conclusion.
Callahan, 77 Wn.2d at 29-31 (citation omitted).
Unlike in Callahan, there is sufficient evidence in this record from which a jury could find that Freeman did have dominion and control over the van. Garza testified that the van was owned by Freeman's wife, was kept in Freeman's driveway, and that Freeman had asked him to repair the van. Notes found in the van were addressed to Freeman. This is sufficient evidence from which the jury could find that Freeman constructively possessed the cocaine because he had dominion and control over the van where the drugs were found. We conclude that the State presented sufficient evidence to support Freeman's conviction for possession with intent to deliver.
Accomplice Liability Instruction
Freeman and Garza argue that the accomplice liability instruction was erroneous because the instruction stated that a person is an accomplice if he or she acts with knowledge that his or her actions will promote a crime. The State concedes that the instruction was erroneous because it should have specified that for accomplice liability to attach, the person must act with knowledge that his or her actions will promote the specific crime charged.
The trial court gave the following accomplice liability instruction:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate a crime, he or she either:
(1) Solicits, commands, encourages, or requests another person to commit the crime; or
(2) Aids or agrees to aid another person in planning or committing the crime.
(Emphasis added.) The State concedes that the indefinite articles used in the first half of the instruction should have been definite articles. The State argues, however, that this was harmless error because it did not present evidence of other uncharged crimes and did not argue that either defendant's accomplice liability was based on a crime other than the one charged — so the jury was not confused between a crime and the crime because there was only one crime charged. The use of indefinite articles in the first half of the instruction was erroneous, but the State notes that the second half — where definite articles were used — clarifies that the jury must focus on the crime charged. An erroneous jury instruction is harmless if, beyond a reasonable doubt, the error complained of did not affect the verdict. State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002).
Garza argues that it is not clear whether the error affected the verdict because it is not clear whether he was convicted as a principal or an accomplice. While it is true that both Garza and Freeman were both charged with possession with intent to deliver, only Freeman was convicted of that charge. Garza was convicted of the lesser-included crime of possession. Garza argues that it is unclear from the jury's verdict whether he was convicted of possessing cocaine (either in the form of cocaine residue in the pipe or the larger amount in the bag) as a principal or whether he was convicted as an accomplice to Freeman's simple possession of the residual cocaine in the crack pipe.
Freeman's theory of the case was that he did not have possession of the bag of cocaine with intent to deliver, but only possessed cocaine in the form of residue found in the pipe. Garza's theory of the case was that he did not know that either the pipe or the bag of cocaine was in the van, thus raising an unwitting possession defense.
The State argues that the jury clearly based Garza's conviction on his constructive possession of the cocaine found in the bag because the "to convict" possession instruction did not include accomplice liability language. Additionally, the State did not argue that Garza was an accomplice to Freeman's uncharged mere possession of the cocaine residue in the pipe.
Garza relies on State v. Teal, 152 Wn.2d 333, 96 P.3d 974 (2004) to argue that the jury could have read the accomplice liability instruction in conjunction with the "to convict" possession instruction to convict him as an accomplice to Freeman's possession — and thus, it is not clear that the erroneous accomplice liability instruction did not affect the verdict. But, in a case analogous to this case — where a defendant was charged with only one crime and there was evidence that he was a principal in that crime, and where the prosecutor addressed only the charged crime during closing argument and did not argue that the defendant was an accomplice with respect to lesser included crimes of the charged crime — a similar error in an accomplice liability instruction was held to be harmless beyond a reasonable doubt. State v. Moran, 119 Wn. App. 197, 215-16, 81 P.3d 122 (2003), review denied, 151 Wn.2d 1032, 95 P.3d 351 (2004).
Here, Freeman's counsel conceded in closing argument that Freeman had actually possessed cocaine residue in the pipe, but argued that he did not have actual or constructive possession of the larger amount of cocaine in the bag. The prosecutor noted this concession, but argued that the evidence supported convictions as charged — possession with intent to deliver — for both Freeman and Garza as principals. The prosecutor argued that the evidence presented showed that either Freeman or Garza possessed cocaine with intent to deliver and that the jury had to decide which defendant to convict of that charge. He argued that the evidence showed that Freeman was at least an accomplice to possession with intent to deliver, and if the jury believed Garza's testimony, then Freeman was the principal. At no time during closing argument did the prosecutor argue that Garza was an accomplice to Freeman's conceded (and uncharged) possession crime, but argued only that Garza should be convicted of possession with intent to deliver. In discussing the difference between actual and constructive possession, the prosecutor noted that Garza had constructive possession over the drugs in the van because he had driven the van.
Under these circumstances — where Garza was charged with only one crime and there was evidence that he committed that crime as a principal, where the jury's possession instruction did not include accomplice liability language, and where the prosecutor did not argue that Garza was an accomplice to Freeman's uncharged mere possession — we conclude that the instructional error did not affect the verdict and was therefore harmless beyond a reasonable doubt.
Possession Jury Instruction
Freeman argues he was prevented from arguing his theory of the case — that he had only passing or momentary control of the pipe — because the trial court refused to include the sentence, "Similarly, passing control or momentarily handling the drugs is not sufficient to establish dominion and control," at the end of the instruction defining possession.
A sentence similar to the rejected sentence in Freeman's proposed instruction was considered in State v. Summers, 107 Wn. App. 373, 383, 28 P.3d 780 (2001). The sentence rejected by the trial court in Summers was: "`Fleeting, momentary or temporary possession of a firearm by a felon is not unlawful.'" Summers, 107 Wn. App. at 383. The court surveyed the case law and concluded that this sentence misstated the law on possession.
Possession is more than passing control. Momentary handling, without more, is insufficient to prove possession. But evidence of momentary handling, when combined with other evidence, such as dominion and control of the premises, or a motive to hide the item from police, is sufficient to prove possession. Finally, even passing control of contraband is not legal; it is merely insufficient to prove possession.
. . . .
. . . . The case law is clear that brief actual possession is illegal. What Callahan and its progeny hold is that passing control does not amount to actual control. Momentary possession is not an affirmative defense. Thus, the proposed instruction misstates the law.
Summers, 107 Wn. App. at 386-87. The Washington Supreme Court has also noted that momentary handling is not necessarily inconsistent with possession.
Depending on the total situation, a "momentary handling", along with other sufficient indicia of control over the drugs, may actually support a finding of possession. See State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977) (court will look at the totality of the situation to determine if there is substantial evidence tending to establish circumstances from which dominion and control may be inferred).
Staley, 123 Wn.2d at 802.
Freeman's proposed instruction did not make it clear that whether control over the drugs is passing or momentary can be considered as one factor determining whether the defendant has constructive possession. As Callahan, Summers, and Staley make clear, dominion and control over either the contraband or the premises where the contraband is found can be inferred from the totality of circumstances. While momentary handling may not be sufficient to establish actual possession, it could be a factor from which a jury could infer dominion and control amounting to constructive possession. Because Freeman's proposed instruction could have misled the jury, then, as to the totality of circumstances that can support a finding of dominion and control required for a constructive possession conviction, the trial court properly refused to give this instruction.
Furthermore, Freeman's theory of the case was not that he had only momentarily handled drugs — his theory was that his mere proximity to the bag of cocaine was not sufficient to support a finding that he possessed the drugs. The jury was instructed on mere proximity: "Although exclusive control is not necessary to establish constructive possession, a showing of more than mere proximity to the drugs is required." The trial court's rejection of the misleading instruction did not therefore deprive Freeman of the ability to argue his theory of the case, and the trial court did not err in rejecting Freeman's proposed instruction.
For the foregoing reasons, we affirm.
WE CONCUR: