Opinion
No. 60907-6-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-00140-5, Linda Lau, J., entered October 22, 2007.
Affirmed by unpublished per curiam opinion.
Police officers investigating what appeared to be an unoccupied car parked late at night at a car wash discovered Joseph Fuchs sleeping in the driver's seat next to methamphetamine in open view. Because the officers did not seize Fuchs for constitutional purposes merely by approaching the car and looking inside, the trial court properly denied his motion to suppress the evidence seized incident to his arrest. Nor has Fuchs shown that defense counsel's performance resulted in the admission of involuntary statements. We therefore affirm Fuchs's conviction for one count of possession of methamphetamine and two counts of second degree possession of stolen property.
The relevant facts are undisputed. At about 11 p.m. on July 6, 2006, King County Sheriff's Deputy Mitchell Wright was on patrol in Shoreline when he noticed a white Cadillac Escalade parked in one of the four open washing stalls at a car wash near 160th and Aurora Avenue. The car appeared to be unoccupied, and no one was nearby or using the stall. When Mitchell drove by the car wash again at about 12:30 a.m., the Escalade was parked in the same spot and still appeared to be unoccupied.
Mitchell parked across the street and radioed King County Sheriff's Detective Bradley Turi. Wright asked Turi, who was driving an unmarked car and working in plain clothes, to drive by the Escalade to see if anyone was inside. After driving by, Turi could not see anyone inside or nearby.
Wright drove his patrol car across the street and parked near an unoccupied stall about 15-20 feet away from the Escalade. Turi also parked near an unoccupied stall. Neither officer's car blocked the Escalade.
Wright got out of his car and walked up to the driver's door of the Escalade, where he saw Joseph Fuchs reclined in the driver's seat and sleeping. Wright then shined his flashlight into the car and saw a glass smoking pipe with white residue and a baggie with a whitish crystalline substance on top of the center console. Based on his training and experience, Wright immediately recognized the white crystalline substance in the baggie and the residue in the glass pipe as likely methamphetamine.
Wright knocked on the driver's window several times until Fuchs awoke.
At Wright's request, Fuchs got out of the car, and Wright placed him under arrest. In a search of the car incident to the arrest, officers found two baggies of methamphetamine, two scales, two glass pipes containing methamphetamine residue, and two credit cards that were not in Fuchs's name.
After being advised of his Miranda rights, Fuchs agreed to talk to the officers. Fuchs identified the substance in the baggie on the console as "meth." He acknowledged that he had a methamphetamine habit, but denied that he sold drugs. When asked about the credit cards, Fuchs said they were "probably stolen" and explained he had received them from a man named "Whitey" in exchange for providing a ride. Detective Turi also discussed with Fuchs whether he might be willing to cooperate by becoming a police informant.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Fuchs with one count of possession of methamphetamine with intent to deliver and two counts of second degree possession of stolen property. Prior to trial, Fuchs moved to suppress his statements and the evidence seized from his car. Following a CrR 3.5/ 3.6 hearing, the trial court concluded that Fuchs's statements were voluntary and the evidence was lawfully seized in the search incident to his arrest.
Following trial, the jury found Fuchs guilty of the lesser included offense of possession of methamphetamine and guilty as charged of the two counts of second degree possession of stolen property.
Unlawful Seizure
Fuchs contends that the trial court erred when it denied his motion to suppress the evidence seized from the Escalade during the search incident to his arrest. He argues that Deputy Wright "seized" him for constitutional purposes by walking toward the Escalade in which he was sleeping. Because Wright lacked a reasonable suspicion of criminal activity justifying a Terry stop, Fuchs claims the resulting seizure of evidence was unlawful. Fuchs bears the burden of showing that he was unlawfully seized. State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998). When, as here, the facts are undisputed, the determination of whether there is an unlawful seizure is a question of law that we review de novo. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004).
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889, (1968).
Under article I, section 7 of the Washington constitution, a person is seized only when, "by means of physical force or a show of authority," his or her freedom of movement is restrained and a reasonable person would not have believed he or she is free to leave under the circumstances. State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (quoting State v. Young, 135 Wn.2d at 510). The evidence here was undisputed that both Wright and Turi parked their cars without blocking the Escalade and made no show of authority as they approached Fuchs's car. Had Fuchs been awake, nothing would have prevented him from driving away. Nor did Wright's use of a flashlight to illuminate the interior of the car convert the encounter into a seizure. See State v. O'Neil, 148 Wn.2d at 578. Under the circumstances, Fuchs has failed to demonstrate an unlawful seizure occurring before his arrest.
Fuchs's arguments rest solely on a misreading of State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007), in which the court held that the Terry exception does not permit an officer to conduct an investigatory detention based solely on suspicion of a parking infraction. But the court in Day had no need to determine at what point the defendant was seized, and nothing in the court's analysis supports the proposition that officers unlawfully seized the defendant merely by approaching the parked car. Indeed, both the majority and dissenting opinions in Day expressly acknowledged that they were in complete agreement that "an officer may approach and speak with the occupants of a parked car even when the observed facts do not reach the Terry stop threshold." Day, at 898 n. 7; see also State v. O'Neill, 148 Wn.2d 564 at 574 (2003) (officer may approach car to ask questions about suspicious circumstances without justification of Terry stop).
Ineffective Assistance of Counsel
Fuchs contends that he was denied effective assistance when defense counsel failed to establish that his statements to Deputy Wright and Detective Turi were involuntary. Fuchs did not testify at the CrR 3.5 hearing and does not challenge the trial court's determination that he knowingly and voluntarily waived his Miranda rights before speaking to the officers. Rather, he contends that had defense counsel brought out the substance of his trial testimony during the CrR 3.5 hearing, the trial court would have found that Detective Turi improperly coerced the statements and suppressed them as involuntary.
In order to overcome the strong presumption of competent representation, a defendant must show both (1) that the attorney's representation fell below an objective standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
In determining whether a defendant's statements during custodial interrogation are admissible and not coerced in violation of the Fifth Amendment to the United States Constitution, a court considers the totality of the circumstances, including
the "crucial element of police coercion"; the length of the interrogation; its location; its continuity; the defendant's maturity, education, physical condition, and mental health; and whether the police advised the defendant of the rights to remain silent and to have counsel present during custodial interrogation.
State v. Unga, 165 Wn.2d 95, 101, 196 P.3d 645 (2008) (quoting Withrow v. Williams, 507 U.S. 680, 693, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993)). A police officer's promise during interrogation does not automatically render a confession involuntary. Unga, 165 Wn.2d at 101. Rather, the promise is improperly coercive only when there is a direct causal relationship between the promise and the confession that demonstrates "the defendant's will was overborne." Unga, 165 Wn.2d at 102.
During the interrogation, Detective Turi asked Fuchs if he was interested in becoming an informant and "working off" some of his current charges. At trial, Fuchs testified that he was "scared" after the arrest and "just knew I was in some trouble." He described Turi as becoming "buddy, buddy" with him during the interrogation and hinting that he would not tow the Escalade if Fuchs cooperated by providing the name of an important Shoreline drug dealer. Fuchs then told Turi that a man named "Whitey" had given him the two credit cards, even though he did not know the man and had only heard friends talk about him. But Fuchs's testimony does not support an inference that Turi improperly influenced Fuchs's decision to talk to the police.
A police officer's use of "psychological ploys," such as encouraging a suspect to cooperate, may affect a suspect's decision to confess, but the confession is voluntary "so long as that decision is a product of the suspect's own balancing of competing considerations." Unga, 165 Wn.2d at 102 (quoting Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986)). Fuchs's explanation for why he mentioned "Whitey" clearly establishes that his decision to cooperate was based on his own independent assessment of the situation:
Well, I was trying to get out of trouble. And I was trying to, um — I was really scared. And I had heard the name Whitey a few times from friends of friends as kind of a thug, criminal type kid that ran around. And so I knew that was — that the officer was kind of fishing for what I knew or who I knew, so that was the first name that popped into my head. To hopefully gain some validity or trying to show the officer that maybe he could use me so I could get out of this trouble that I was in the back of the cop car for.
Moreover, before Fuchs made his statements, Deputy Wright fully and accurately advised him of his right to remain silent and right to counsel. Fuchs was at least 30 years old and had completed high school and attended college. Nothing in the record suggests that his physical or mental abilities affected the voluntariness of his statements.
Viewed in their totality, the circumstances do not support an inference that Detective Turi's reference to not towing Fuchs's car or the possibility of "working off" the charges was sufficient to overcome Fuchs's will or negate his ability to make a rational decision to talk to the officers. See State v. Riley, 19 Wn. App. 289, 576 P.2d 1311 (1978) (officers' promise that defendant would get a reduced charge if he cooperated did not render confession involuntary). Consequently, Fuchs has not shown that his testimony would have had any effect on the outcome of the CrR 3.5 hearing. Because he cannot demonstrate any prejudice resulting from defense Page 8 counsel's alleged errors at the CrR 3.5 hearing, Fuchs's claim of ineffective assistance fails.
Affirmed.