Opinion
No. 31330-8-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 03-1-01382-8. Judgment or order under review. Date filed: 01/05/2004. Judge signing: Hon. M Karlynn Haberly.
Counsel for Appellant(s), James Lewis III Reese, Attorney at Law, 612 Sidney Ave, Port Orchard, WA 98366-4553.
Counsel for Respondent(s), Kevin M. Anderson, Kitsap County Prosecutors Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Mervin Hawkins appeals his conviction for possession of methamphetamine. Through counsel, he alleges that a warrant for his arrest was unlawfully issued, that the police exceeded its scope, and that he should have been permitted to withdraw a guilty plea. Pro se, he makes additional arguments. We affirm.
In 2001, Hawkins unlawfully possessed methamphetamine with intent to deliver. He was sentenced to a term in prison and to a successive term of community custody. While on community custody, he was to report as directed.
See Report of Proceedings (RP) (Jan. 5, 2004) at 33; Exhibit 1. Neither party included a copy of Hawkins' 2001 conviction in the record.
On March 31, 2003, Hawkins was released from prison. On the same date, he commenced his term of community custody, supervised by Community Corrections Officer (CCO) Daryl Alder.
On July 16, 2003, Alder directed Hawkins 'to report on July 21st by 4 p.m.' Hawkins failed to comply.
RP (Jan. 5, 2004) at 34.
On July 25, 2003, Alder requested an arrest warrant pursuant to RCW 9.94A.740(1), under which the Secretary of the Department of Corrections (DOC) may issue a warrant 'for the arrest of any offender who violates a condition of community placement or community custody.' On August 8, 2003, the warrant was issued.
On October 9, 2003, Alder learned from Hawkins' landlord that Hawkins was living at 103 Lippert Drive West, #205, Port Orchard. Alder notified the police and asked them to assist in serving DOC's warrant.
About 2:30 a.m. that night, Officers Truong and Meador went to Hawkins' apartment. They thought that Hawkins might be driving either of two vehicles, one of which was 'maybe' in the parking lot. They went to the door of the apartment and knocked. A woman came to the door and identified herself as Michelle Hawkins, Hawkins' wife. She said that Hawkins was out for the evening. The officers asked if they could check the home to be sure Hawkins was not there. According to Meador, Michelle said yes and consented to their entry. According to Michelle, she did not give consent. Truong and Michelle went to a back bedroom, where Truong observed drug paraphernalia 'out in the open, on a nightstand right next to the bed.' A few minutes later, Hawkins arrived home and was arrested. He declined to consent to a search of his home, so the officers obtained a search warrant. When they executed the warrant, they found and seized methamphetamine.
RP (Jan. 5, 2004) at 26.
RP (Jan. 5, 2004) at 10.
On October 10, 2003, the State charged Hawkins with possession of methamphetamine. On December 18, 2003, the trial court heard the State's motion to postpone trial until January 5, 2004. Hawkins was represented by an attorney who was substituting for his regular attorney. The two attorneys agreed that it was 'acceptable' to postpone the trial; that the time for speedy trial expired on Sunday, January 4, 2004; and that Hawkins' motion to suppress should be heard on Monday, January 5, immediately prior to trial.
RP (Dec. 18, 2003) at 3.
The record does not show Hawkins' date of arraignment.
On Monday, January 5, 2004, Hawkins claimed that the period for speedy trial had already expired. The trial court denied relief, explaining that when speedy trial time expires on a Sunday, 'it goes over until Monday.'
RP (Jan. 5, 2004) at 4.
That same day, the trial court heard Hawkins' motion to suppress the methamphetamine. Alder and Meador testified as described above. Truong was not called by either side. Michelle denied that she had given consent for the officers to enter the home. The trial court ruled that the arrest and search warrants had been lawfully issued and executed, and that Hawkins' motion should be denied. The trial court did not find whether Michelle had or had not given consent.
Still on the same day, the trial court held a bench trial on stipulated facts. Before accepting Hawkins' agreement to that procedure, the trial court advised him of the rights he was relinquishing and found that he was relinquishing those rights knowingly, intelligently, and voluntarily. In a document titled 'Verdict on Submission of Stipulated Facts,' Hawkins admitted possessing methamphetamine with knowledge of what it was. The court imposed a standard range sentence of 12+ months, and Hawkins filed this appeal.
Clerk's Papers (CP) at 19.
I.
Hawkins argues that RCW 9.94A.740(1) is unconstitutional because it purports to authorize the Secretary of DOC to issue arrest warrants. He reasons that under both the Fourth Amendment of the United States Constitution and Article I, sec. 7 of the Washington Constitution, an arrest warrant can be issued only by a neutral and detached magistrate, and that the Secretary of DOC is not such a person. He does not argue that even if RCW 9.94A.740(1) is constitutional, its statutory procedures were not followed.
Hawkins does not argue, for example, that the warrant for his arrest was not actually issued by the Secretary of DOC, even though he implies that it was issued by Alder. Br. of Appellant at 10 ('Issuance of an administrative arrest warrant . . . by a community corrections officer is in violation of the Fourth Amendment and . . . Article I, Section 7' (emphasis omitted)). The record does not support the implication. See RP (Jan. 5, 2004) at 35 (Alder 'requested a warrant for [Hawkins'] arrest'); RP (Jan. 5, 2004) at 37 (warrant was 'issued by the Department of Corrections'). Exhibit 2, a computer print-out, does not show who issued the warrant.
Many states have statutes that permit a parole board or parole officer to issue an arrest warrant due to an offender's violation of parole. The courts have generally upheld the constitutionality of such statutes against a challenge like the one here, reasoning that a parolee's liberty is conditional rather than absolute.
Ala. Code sec. 12-25-38(b) (1975); Alaska Stat. sec. 33.16.240(b) (West 2004); Ariz. Rev. Stat. sec. 31-415 (West 2005); Ark. Code sec. 16-93-705(a)(1) (West 2005); Cal. Penal Code sec. 3000(b)(8) (West 2005); Colo. Rev. Stat. Ann. sec. 17-2-103(3) (West 2005); Del. Code Ann. tit. 11, sec. 4352(a) (2005); Fla. Stat. Ann. sec. 947.22(1) (West 2005); Ga. Code Ann. sec. 42-9-48(a) (2005); Haw. Rev. Stat. sec. 353-65 (2003); Idaho Code sec. 20-228 (Bender 2004); Ind. Code Ann. sec. 11-13-3-8(c) (West 2005); Kan. Stat. Ann. sec. 75-5217(a) (2003); Ky. Rev. Stat. Ann. sec. 439.430(4) (West 2005); La. Rev. Stat. Ann. sec. 15:574.7B(1)(c) (West 2005); Mass. Gen. Laws Ann. ch. 127 sec. 149A (West 2005); Me. Rev. Stat. Ann. tit. 34, sec. 5402(2)(H) (West 2004); Md. Code Ann., Corr. Serv. sec. 7.206(2) (2005); Mich. Comp. Laws Ann. sec. 791.238(1) (West 2005); Miss. Code Ann. sec. 47-7-27 (2005); Mo. Ann. Stat. sec. 217.720(1) (West 2005); Mont. Code Ann. sec. 46-23-1023(1) (2003); Neb. Rev. Stat. sec. 83-1,119 (2004); Nev. Rev. Stat. Ann. sec. 213.151(1) (West 2005); New Jersey Stat. Ann. sec. 30:4-123.62(a)(1) (West 2005); N.M. Stat. Ann. sec. 31-21-14(A) (West 2005); Okl. Stat. Ann. tit. 57, sec. 516(A) (West 2005); Or. Rev. Stat. sec. 144.340(2)(a) (2003); R.I. Gen. Laws sec. 12-7-17 (2004); S.C. Code Ann. sec. 24-21-680 (Law. Co-op. 2004); Tenn. Code Ann. sec. 40-28-120 (2004); Tx. Gov't sec. 508.25(1)(a) (Vernon 2004); Utah Code Ann. sec. 77-27-11(3) (2004); Vt. Stat. Ann. tit. 28, sec. 363(a) (2004); Va. Code Ann. sec. 53.1-161 (West 2005); W. Va. Code sec. 62-12-19(a) (West 2005).
See, e.g., Davenport v. State, 568 P.2d 939, 943-47 (Alaska 1977) (statute permitting parole board to issue warrant did not violate Fourth Amendment); State v. Franks, 281 S.E.2d 227, 228, 276 S.C. 636 (S.C. 1981) (statute providing for probation officer to issue arrest warrant when a violation of probation conditions has occurred did not violate Fourth Amendment); Garrett v. State, 768 S.W.2d 943, 946-47 (Tex.App. 1989), aff'd, 791 S.W.2d 137 (Tex.Crim.App. 1990) (statute providing for parole board to issue arrest warrant on less than probable cause without a neutral and detached magistrate complied with Fourth and Fourteenth Amendments and did not violate separation of powers doctrine); Jones v. Utah Board of Pardons Parole, 94 P.3d 283, 290, 2004 UT 53 (Utah 2004) (statute providing for parole board to issue a warrant based on a parole violation does not violate separation of powers); see also Wilson v. Williams, 418 F. Supp. 895, 896 (W.D. Okla. 1976) (state statute permitting head of Probation and Parole to issue arrest warrants did not present substantial federal question under Fourth Amendment).
See Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).
Community custody in Washington is equivalent to parole. A person presently on community custody, placement, or supervision has a privacy interest that is diminished rather than absolute and, by the same token, a liberty interest that is conditional rather than absolute. Like the courts in other states, we reject Hawkins' constitutional challenge.
In re McNeal, 99 Wn. App. 617, 631, 994 P.2d 890 (2000).
State v. Lucas, 56 Wn. App. 236, 239-40, 783 P.2d 121 (1989), review denied, 114 Wn.2d 1009 (1990) ('Under the Fourth Amendment and article 1, section 7 of our constitution, probationers and parolees have a diminished right of privacy permitting a warrantless search if reasonable.'); State v. Patterson, 51 Wn. App. 202, 204, 752 P.2d 945, review denied, 111 Wn.2d 1006 (1988) (Washington probationer has diminished right of privacy); State v. Lampman, 45 Wn. App. 228, 233, 724 P.2d 1092 (1986) (same).
II.
Hawkins argues that even if DOC's arrest warrant was constitutionally issued, it did not empower the police to enter his apartment because it was not based on probable cause. He relies on Payton v. New York and its progeny.
445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
In Payton, the United States Supreme Court held that the police may not make a warrantless entry into a home in order to effect a routine felony arrest. The Court also commented 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.' Because neither defendant was on probation or parole, the Court did not state that an administrative arrest warrant like the one in issue here must be grounded on probable cause.
445 U.S. at 603; see also State v. Williams, 142 Wn.2d 17, 24, 11 P.3d 714 (2000) (quoting Payton, 445 U.S. at 603); State v. Hopkins, 113 Wn. App. 954, 958, 55 P.3d 691 (2002) ('arrest warrant, by itself, provides authority for the police to enter a person's residence to effectuate his or her arrest').
Washington does not require probable cause when a CCO has legitimate need to enter the home of a probationer or parolee on a matter related to supervision. In such an instance, the CCO or officers aiding the CCO may enter the house of the probationer or parolee, without a warrant, if they have reasonable suspicion. A fortiori, the CCO or officers aiding the CCO may enter the house, with a warrant, if they have reasonable suspicion. Accordingly, the question here is whether Truong and Meador had reasonable suspicion that Hawkins was inside the house.
State v. Simms, 10 Wn. App. 75, 86, 516 P.2d 1088 (1973), review denied, 83 Wn.2d 1007 (1974).
State v. Campbell, 103 Wn.2d 1, 22-23, 691 P.2d 929 (1984); State v. Massey, 81 Wn. App. 198, 200-201, 913 P.2d 424 (1996); Lucas, 56 Wn. App. at 240-41; Lampman, 45 Wn. App. at 233; Simms, 10 Wn. App. at 85-86. This does not mean that a CCO may enter the home of a third party in which the probationer or parolee does not reside. Hocker v. Woody, 95 Wn.2d 822, 826, 631 P.2d 372 (1981).
When Truong and Meador went to Hawkins' apartment, it was 2:30 a.m., a time when most people are at home. Meador likely believed, though he later was not sure, that a car driven by Hawkins was in the parking lot. Hawkins' wife was at home, and they were not required to believe her assertion that Hawkins was not there as well. As far as the record shows, this was the first time they had gone to Hawkins' house, and they had no reason to believe he would not be at home. They reasonably suspected he was in the apartment, Payton does not require more, and their entry was lawful.
We do not address whether Payton might require less.
See also RCW 10.31.040.
III.
Hawkins argues that the trial court erred by not finding whether Michelle's consent to enter was voluntary. We agree. The issue is moot, however, because Sections I and II are dispositive.
IV.
Hawkins argues that the trial court erred by denying his motion to withdraw his guilty plea. He reasons that his plea was defective because his counsel was ineffective.
A guilty plea is not the same as a stipulated facts trial. Hawkins did not plead guilty, so he had no guilty plea to withdraw. He has not shown that he failed to act knowingly, voluntarily, and intelligently when he agreed to a stipulated facts trial, or that his attorney rendered ineffective assistance. The trial court did not err.
See State v. Smith, 134 Wn.2d 849, 853, 953 P.2d 810 (1998); see also State v. Halgren, 137 Wn.2d 340, 343, 971 P.2d 512 (1999); State v. Ehli, 115 Wn. App. 556, 562-63, 62 P.3d 929 (2003).
V.
Pro se, Hawkins filed a statement of additional grounds for review. He essentially makes three arguments.
A.
Hawkins argues that his speedy trial rights were violated. Under former CrR 3.3(c), a defendant in jail must be tried within 60 days of arraignment. If the last day of the 60-day period falls on a Sunday, the period is extended to Monday.
CR 6(a); State v. Wilks, 85 Wn. App. 303, 932 P.2d 687, review denied, 133 Wn.2d 1002 (1997); State v. Kelley, 64 Wn. App. 755, 757, 828 P.2d 1106 (1992).
The record here does not show the date on which Hawkins was arraigned. It shows only that on December 18, 2003, the prosecutor and an attorney representing Hawkins agreed that time for trial expired on Sunday, January 4, 2004, and that trial began on Monday, January 5. Accordingly, the record does not show that Hawkins' right to speedy trial was violated.
B.
Hawkins asserts that Michelle lacked the authority to give consent to a search of his apartment. As the trial court did not find that she gave consent, the issue is immaterial.
C.
Hawkins claims that his trial attorney rendered ineffective assistance for a variety of reasons. To demonstrate ineffective assistance, he must show both deficient performance and resulting prejudice. He has not shown either here, and thus his claim fails.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Any remaining arguments lack merit or need not be reached.
Affirmed.
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.
ARMSTRONG, J., HUNT, JJ., concur.