Opinion
No. 31574-2-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-01879-3. Judgment or order under review. Date filed: 03/11/2004. Judge signing: Hon. Bruce W. Cohoe.
Counsel for Appellant(s), Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA 98070-2711.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Dennis J. Hall appeals his convictions of unlawful possession of a controlled substance, methamphetamine, and three counts of bail jumping. He claims the trial court erred in concluding that the police officer legally seized methamphetamine from the back of his truck. Because the pickup was in a public place, open to public view, and the officer had probable cause to believe that the baggie in the glasses case in the open bed of the truck was a controlled substance, the court properly denied Hall's motions to suppress. Thus, we affirm.
FACTS
Before trial, the parties had a hearing on Hall's CrR 3.5 and CrR 3.6 motions regarding admissions he made to the arresting officer and evidence the officer seized at the scene of his arrest. Hall's motion to suppress contained no argument, it simply cited the Fourth Amendment to the U.S. Constitution, article I, section 7 of the Washington Constitution, and State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999). It also contains the proviso: `At the hearing on this motion defense expects the officer to testify to the facts as set forth in the narrative of his report.' Clerk's Papers (CP) at 15. Based on the police report, the court admitted the seized evidence, including several small baggies of methamphetamine and drug paraphernalia found inside a glasses case in the bed of the pickup truck Hall had driven with a suspended license.
At trial, before a different judge, Officer David Temple testified, consistent with his police report, that, after arresting Hall, he looked into the truck bed and saw a glasses case with a corner of a plastic baggie containing a white powder sticking out. He testified that he suspected that the substance was a narcotic. Following this testimony, Hall again moved to suppress the evidence, arguing that the search was not incident to arrest because Hall was arrested 60 feet away from the truck. In response, the prosecutor argued: `Your Honor, [the CrR 3.5 and CrR 3.6 motions] were heard without testimony in which defense stipulated to the offering of the police report, which was what she actually offered to the Court. And for her to come in here now and re-argue these motions is completely inappropriate.' 2 Report of Proceedings at 64. The trial court agreed.
Four months after trial, the court entered findings of fact and conclusions of law on its rulings on the CrR 3.5 and CrR 3.6 motions that had preceded the trial. The following are undisputed pertinent findings of fact:
Hall assigns error only to finding of fact XII on appeal. The trial court derived its findings of fact for the combined CrR 3.5 and CrR 3.6 hearing from the police report (CrR 3.6) defense counsel submitted. Hall did not provide a transcript of the CrR 3.5/3.6 hearing or of the hearing on entry of the findings and conclusions. As he stipulated to the court's use of the police report for the facts at the CrR 3.6 hearing, there are no disputed facts from that hearing.
After Officer Temple testified at trial, Hall renewed his motion to suppress, arguing that because Officer Temple was 60 feet from the truck, he could not search it incident to arrest. He did not claim, as he does on appeal, that Officer Temple's suspicion that the baggie contained narcotics was insufficient to justify his seizure of the glasses case.
In his appellate brief, he relies on Officer Temple's trial testimony to challenge finding of fact XII from the CrR 3.6 proceeding. But finding of fact XII follows from the original hearing where it was undisputed and, thus, we treat it and the other unchallenged findings as verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Furthermore, when we examine Officer Temple's trial testimony, it is consistent with the police report. Officer Temple said in his report and at trial that he suspected that the visible baggie contained narcotics based on his training and experience. The trial court concluded that Officer Temple had probable cause to open the glasses case based on the police report. We reach the same conclusion based on Officer Temple's trial testimony.
I. Procedurally, on day of trial, January 28, 2004 the defense filed a motion to suppress under CrR 3.6. The motion was served on the State the day of trial. The basis for the defense motion was pursuant to State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999). The parties stipulated to the police report for the purpose of the CrR 3.6 suppression hearing. The following undisputed facts are based on the police report defense attached to the filed motion.
. . . .
III. [On April 22, 2003, at approximately 2225 hours,] Officer Temple was patrolling the parking lots of down town Puyallup businesses in the 300 block of South Meridian. There had been reports of vehicle thefts and theft from vehicles in the down town business area. While he was behind the Forbidden City Restaurant he observed a white male later identified as Dennis James Hall, DOB 12-13-61, standing near an orange and white GMC pickup truck. Hall was looking around the parking lot for a short time and then threw something into the bed of the truck. When the object landed in the bed of the truck it made a clunking noise. Hall then got into the truck and continued looking around the parking lot.
IV. Dennis Hall started the truck and began to back it up.
V. Officer Temple rode closer to the truck to get a closer look at Hall. As he approached the area, the parking lot lights made it easier to see. As Officer Temple passed the truck on his bicycle he recognized Hall from previous arrests. Hall was also picked out of a photo line-up as a possible suspect in an identity theft and stolen check report Officer Temple had taken on April 14, 2003 at the K-Mart in Puyallup. Hall was the only occupant in the truck. He started to drive away.
VI. Officer Temple had City Communications Dispatch conduct a driver's and records check on Dennis James Hall, 12-13-61. While Officer Temple was waiting for the results, Hall parked his vehicle closer to the building and then went into the Forbidden City Restaurant.
VII. Officer Temple requested a second unit in the area as he attempted to make contact with Hall. Officer Temple rode to the front of the business fearing Hall might walk out the front. Officer Reiber arrived on scene and covered the back of the building. Before entering the business, Officer Temple did not observe any one approach Hall's vehicle.
VIII. City Communications Dispatch advised Officer Temple that Hall had a suspended driver's license in the third degree. Officer Temple was advised of this information prior to entering the Forbidden City Restaurant.
IX. Officer Temple entered the business and contacted Hall. He escorted Hall out of the business near his vehicle.
X. Officer Temple advised Hall he was under arrest for driving while license suspended in the third degree. The defendant stated, `But I only backed the truck up and parked it next to the building closer'. Officer Temple read the defendant his Miranda Rights from a prepared card. The defendant acknowledged understanding his rights. The defendant did not appear confused about his Miranda Rights and did not indicate that he wished to exercise those rights.
XI. During a search incident to arrest Officer Temple found a spring assisted folding knife with an approximately three inch blade in the defendant's pants pocket.
XII. Officer Temple testified to the following facts: He recognized the defendant from previous contacts, including an arrest for driving while license suspended. After placing Hall under arrest, Temple went over to the pick up [sic] truck and without any assistance he looked in the bed of the truck. Officer Temple observed a closed glasses case with a small plastic baggie hanging out of the end of the case. The plastic baggie contained a white powder residue. Based on Officer Temple's training and experience, he recognized the white powder residue as a controlled substance.
XIII. After recognizing the powder as a controlled substance, Officer Temple picked up the glasses case and opened it up. In addition to the baggie with white powder residue, Officer Temple found a total of six small baggies with white powder, two plastic straws with white residue on them, and a glass smoking device with residue.
CP at 106-09.
Based on these findings, the court concluded that (1) the stop was not pretextual; (2) Hall's arrest was lawful; (3) the glasses case was in plain view and Officer Temple immediately recognized the powder substance to be a controlled substance and, based on his training and experience, had probable cause to seize it; (4) Hall had no reasonable expectation of privacy in the glasses case as it was in the open bed of the pickup truck; (5) Officer Temple was justified in searching the truck incident to arrest; and (6) Hall's statements were admissible, as were the methamphetamine and drug paraphernalia.
The content and context of the court's conclusions of law make it clear that it found the glasses case in `open' view, not `plain' view.
A jury found Hall guilty of unlawful possession of a controlled substance and three counts of bail jumping. It did not find a deadly weapon enhancement.
ANALYSIS Open View Seizure
Hall claims that Officer Temple unlawfully searched his truck without a warrant. We disagree.
The police do not perform a search or seizure merely because they observe what is in open view (as opposed to what is surrounded by a reasonable expectation of privacy). State v. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986); State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981). A vehicle is generally in open view when it is parked in a public place. State v. O'Neill, 148 Wn.2d 564, 579, 62 P.3d 489 (2003). And `a person has a diminished expectation of privacy in the visible contents of an automobile parked in a public place.' State v. Young, 28 Wn. App. 412, 416, 624 P.2d 725 (1981) (citing United States v. Chadwick, 433 U.S. 1, 12-13, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976)). `What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.' Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). See also State v. Herzog, 73 Wn. App. 34, 52, 867 P.2d 648 (1994) (observing contents of truck from lawful vantage point not a search); State v. Lemus, 103 Wn. App. 94, 103, 11 P.3d 326 (2000) (using flashlight to see car's interior did not turn the observation into an intrusive method of viewing). When Officer Temple approached and looked into Hall's truck from his lawful vantage point, he was not performing a search or acting unlawfully.
Probable Cause and Plain View Seizure
The court found that Officer Temple recognized the substance in the baggie sticking out of the glasses case as a controlled substance. Hall challenges finding of fact XII for the first time on appeal, but he does not challenge finding of fact XIII. Finding of fact XIII alone establishes that Officer Temple recognized the powder in the bag sticking out of the side of the glasses case as a controlled substance, as does Officer Temple's trial testimony. Based on his recognition of the substance, Officer Temple opened the glasses case and found six baggies of methamphetamine and drug paraphernalia.
Hall contends that the officer violated his right of privacy under article 1, section 7, of the Washington Constitution when he opened the glasses case without a warrant and that the trial court's conclusions of law VIII-XI are incorrect.
Although conclusion of law VIII is denoted a conclusion of law, it is actually a finding of fact and we therefore do not review it de novo. State v. Niedergang, 43 Wn. App. 656, 659, 719 P.2d 576 (1986) (citing State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981)).
We review conclusions of law de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997). Here, the trial court admitted the evidence because Officer Temple had probable cause to search the truck incident to Hall's arrest, and Officer Temple had sufficient education and experience to recognize a controlled substance such as the powder in the baggie sticking out the side of the glasses case. We agree with the trial court.
Because Officer Temple had probable cause to believe that the baggie sticking out of the glasses case contained illegal drugs, he could open the glasses case without a warrant in order to seize it. See State v. Greene, 97 Wn. App. 473, 983 P.2d 1190 (1999); State v. Mance, 82 Wn. App. 539, 541, 918 P.2d 527 (1996) (probable cause exists when the arresting officer is aware of facts and circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe that a crime has been or is being committed). It is sufficient that the facts and circumstances point to the probability of criminal activity. Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Seagull, 95 Wn.2d at 906. Thus, the trial court did not err in finding and concluding that Officer Temple had probable cause to seize the baggie sticking out of the glasses case.
Officer Temple could also seize the other baggies and paraphernalia because they were in plain view once he opened the glasses case. The `plain view' exception requires that `the officer had a prior justification for the intrusion and immediately recognized what is found as incriminating evidence such as contraband, stolen property, or other item useful as evidence of a crime.' O'Neill, 148 Wn.2d at 583. `Objects are immediately apparent for purposes of a plain view seizure when, considering the surrounding facts and circumstances, the police can reasonably conclude they have evidence before them.' State v. Lair, 95 Wn.2d 706, 716, 630 P.2d 427 (1981).
Here, Officer Temple observed the glasses case from a lawful vantage point, seized it under the open view exception to the warrant requirement, and, in doing so, observed additional drugs and paraphernalia in plain view. The trial court did not err in denying Hall's motion to suppress the physical evidence.
We affirm.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.