Opinion
No. 30732-4-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-01447-0. Judgment or order under review. Date filed: 08/01/2003. Judge signing: Hon. Beverly G. Grant.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
David A. Hillsman was charged and convicted of forgery, unlawful possession of a controlled substance, and first degree unlawful possession of a firearm. Deputy Jeff Papen arrested Hillsman for possession of drug paraphernalia. Hillsman challenges the trial court's denial of his suppression motions. Because we find that the search incident to arrest exceeded its legal scope, we reverse the firearm conviction, but affirm the forgery and possession convictions, and remand for resentencing.
Hillsman also challenges the effectiveness of his counsel, the sufficiency of the evidence on the weapon possession charge, and the jury instructions. We do not address these challenges because we hold that the search of the trailer was invalid.
FACTS
Steve Manske, a Pierce County zoning code enforcement officer, received several complaints about possible code violations and drug activity on Phyllis Alford's property in Graham, Washington. On March 26, 2003, Manske and several police officers went to investigate the complaints. They approached a mobile home on the property that appeared to be the main residence.
Manske knocked on the door and Tim Alford answered. Alford identified himself as Phyllis Alford's son. He stated that he lived there and took care of the property.
Manske explained that the county had received complaints about illegal vehicles and activities on the property and asked if he could inspect the area. Alford gave Manske permission to inspect the property, inventory the vehicles, and check to see if anyone was occupying the other trailers on the property. Alford indicated that he did not believe that anyone was in the trailers and that they were probably locked. He said he did not have a key to open the locked trailers.
As they inspected the property, Papen noticed that one travel trailer was `rocking back and forth.' 2 Report of Proceedings (RP) (July 9, 2003) at 56. The officers heard male and female voices coming from inside. Papen knocked on the door and received no response. Another officer knocked again and a woman replied, `Come on in.' 2 RP (July 9, 2003) at 57. Papen did not identify himself as a police officer before entering, but he said they `weren't trying to hide or anything,' and `were standing right at the door knocking on it.' RP (July 7, 2003) at 46. There were windows on the trailer; the officers were in full uniform.
Papen stepped into the trailer and was `immediately within just several feet' of the four occupants, two men and two women. 2 RP (July 9, 2003) at 58. The two women sat at a small table and the two men stood close by, toward the back of the trailer.
Papen noticed a baby bottle that had been converted into a bong sitting on the table. It was partially filled with water and had burn marks on it. Papen also noticed bullets in a plastic case on the floor. Concerned for his safety, Papen asked the occupants to put their hands where he could see them. But the occupants continued to `fidget and move around,' keeping their hands out of view and turning away from Papen. 2 RP (July 9, 2003) at 60.
Because they were noncompliant, Papen asked the occupants to exit the trailer. Papen then asked one of the men, later identified as Hillsman, for his identification. Hillsman handed Papen a forged temporary Washington State driver's license bearing the name `Douglas Bradley Sample.' 2 RP (July 9, 2003) at 65. Papen radioed the Department of Licensing, which reported no valid license with that name.
Papen placed Hillsman under arrest for possession of `drug paraphernalia.' 2 RP (July 9, 2003) at 69. Incident to the arrest, Papen searched Hillsman and found a bag containing methamphetamine.
Papen then returned to the trailer and searched the area where Hillsman was standing before Papen directed him to exit the trailer. Papen found a closed black gym bag containing men's clothing, photographs of Hillsman and other people, a card addressed to `Uncle David,' and a loaded handgun. According to Papen, the bag was within Hillsman's reach when Papen first entered the trailer.
The State charged Hillsman with first degree unlawful firearm possession, unlawful possession of a controlled substance, and forgery. Former RCW 9.41.040 (1997); former RCW 69.50.401 (1998); former RCW 9A.60.020 (1975). It also alleged that Hillsman was armed when he committed the possession and forgery offenses.
Hillsman brought a pretrial motion to suppress evidence seized during the search incident to his arrest. He argued that the search was not based on valid consent and exceeded the scope of a search incident to arrest. The trial court denied the motion. Hillsman renewed his motion at trial, asserting a new ground: that possession of drug paraphernalia could not be the basis of a lawful custodial arrest. The court denied the motion as untimely and not in compliance with CrR 3.6.
The jury convicted Hillsman on all three counts and entered special verdicts supporting the deadly weapon enhancements. The court sentenced him to a standard range sentence of 82 months.
Hillsman then filed this timely appeal challenging the trial court's denial of his suppression motions.
ANALYSIS
Hillsman asserts that the trial court erred when it denied his motions to suppress the evidence of his drug and gun possession. He asserts that the arresting officer was required to have a warrant to search the trailer and his person because no exception to the warrant requirement applied.
We consider the trial court's ruling to determine whether substantial evidence supports its factual findings. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). And we review the court's conclusions of law de novo. Mendez, 137 Wn.2d at 214.
Police officers must obtain a warrant to search private property unless an exception applies. U.S. Const. amend. IV; Wash. Const. art. 1, sec. 7; State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). Two exceptions to this rule are valid consent and a search incident to arrest. Hendrickson, 129 Wn.2d at 71.
I. Consent to Enter the Trailer
Hillsman first contends that the search of the trailer was invalid because the officers did not have valid consent to search the trailer.
A. Alford
Hillsman first argues that Alford did not have authority to give valid consent to enter the property because his mother owned the property. But he also argues that if Alford did give valid consent to enter the property, the consent did not extend to a search of the trailer in which Papen located the handgun.
Consent is considered valid when it is voluntary and granted by a party having the authority to consent. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004). The search must then be limited to the scope of the consent granted. Thompson, 151 Wn.2d at 803.
Authority to give consent may be indicated by access and permission to enter. State v. Holmes, 108 Wn. App. 511, 520, 31 P.3d 716 (2001). These factors tend to show that the third party has control over the premises and thus, the authority to give valid consent. Numerous cases support the trial court's conclusion that a third-party caretaker can give valid consent to a search of the property. See United States v. Baswell, 792 F.2d 755, 759 (8th Cir. 1986) (evidence that quasi-caretaker had a key and responsibility to look out for the property sufficient to uphold finding of implied authority to consent to search of vacation home); State v. Hawkins, 131 Idaho 396, 958 P.2d 22, 27-28 (Idaho Ct.App. 1998) (evidence that sister was owner of motor home and her boyfriend had a key was sufficient for reasonable belief that they had authority to consent to search); State v. McCaughey, 127 Idaho 669, 674, 904 P.2d 939 (Idaho 1995) (police had reasonable belief in apparent authority when third party was married to defendant, lived on the premises at the time of search, and produced keys to open door); Holmes, 108 Wn. App. at 520 n. 29 (citing United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir. 1988) (party who had a key to the premises and access throughout the residence could give valid consent to search)).
Alford had lived on the property for approximately eight years. He cared for the property while his mother resided in Kent. Alford granted permission to inspect the property for occupied trailers and other possible code violations.
Alford had authority to consent to the search of the property, including knocking on the door of the trailer to determine if it was occupied, but he did not have access to any of the trailers, except his residence, because he did not have keys to them. Thus, Alford could not give valid consent to enter or search the trailer.
B. Trailer Occupant
But consent to enter the trailer could be given by an occupant of the trailer. A woman in the trailer expressly told Papen to `[c]ome on in' when he knocked on the door. 2 RP (July 9, 2003) at 57. The officers had not exercised any authority at that point, they had not identified themselves as police, and no one had yet observed that they were in uniform. They were in the same position as any other citizen asking to come in and entering only if permitted. When she told them to come in without bothering to come to the door, she knowingly and voluntarily admitted whoever was at the door. Because they had permission to enter, the officers could legally observe whatever was in plain view, but the consent to enter did not extend to a search of the trailer. State v. Khounvichai, 149 Wn.2d 557, 565-66, 69 P.3d 862 (2003).
The woman who responded to the knock was not at the door, and Papen had to open the door and enter in order to speak with her. Because Papen did not have consent from Alford or the trailer occupant to search the trailer, we do not address the State's standing argument.
II. Search Incident to Arrest
Hillsman also argues that the officer's search of his person and the search of the trailer were invalid because they were not legitimate searches incident to arrest. He specifically argues that his arrest for possession of drug paraphernalia was an invalid arrest and, therefore, the evidence obtained as a result of that arrest was inadmissible.
When Papen entered the trailer, he was confronted with evidence of drug use by four individuals on Alford's property without Alford's knowledge. Papen could also see bullets in a plastic container on the floor. Papen told the occupants of the trailer to keep their hands where they could be seen, but they continued to move around and did not obey his request. These circumstances created a reasonable suspicion of criminal conduct justifying a valid Terry stop for trespass, the use of illegal drugs, and the presence of drug paraphernalia. State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Papen seized Hillsman when he ordered the occupants outside and, because he had reasonable suspicion, he properly asked Hillsman to identify himself. Hillsman stated that his name was Douglas S. Sample and he gave Papen a temporary driver's license in the name of Douglas Bradley Sample. The identification looked `suspicious' because it was a different color than the typical temporary Washington license. The license was also laminated, unlike temporary licenses, and appeared to have different printing. Papen radioed the `records person' and established that there was no one on record with the Department of Licensing by the name of Douglas Bradley Sample or Douglas S. Sample. Papen `believed [Hillsman] was lying' and told Hillsman that `if he continued to lie, [Papen] would be arresting him for obstruction.' 2 RP (July 9, 2003) at 68. When Papen determined that Hillsman gave him a false name and possibly forged identification, he had probable cause to detain and arrest Hillsman for forgery or for obstruction. See Mendez, 137 Wn.2d at 223. Upon being told that Papen would arrest him, Hillsman requested an attorney and Papen arrested him for possession of drug paraphernalia.
Former RCW 9A.60.020 states:
(1) A person is guilty of forgery if, with intent to injure or defraud:
(a) He falsely makes, completes, or alters a written instrument or;
(b) He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.
RCW 9A.76.020(1) states:
A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.
A. Search of Hillsman's Person
The arrest justified Papen's search of Hillsman, during which he discovered a baggie containing methamphetamine in Hillsman's pocket.
During trial, Hillsman moved to suppress the evidence based on the improper arrest for possession of drug paraphernalia. Hillsman is correct that Papen could not lawfully arrest him for possession of drug paraphernalia or use of drug paraphernalia. Possession of drug paraphernalia is not a crime and Papen did not observe Hillsman use the bong inside the trailer. See RCW 69.50.412; O'Neill, 148 Wn.2d at 584 n. 8; State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d 1017 (1998). But the trial court denied his motion for untimeliness and for not being brought consistent with CrR 3.6.
We can affirm a trial court's decision on any ground the record supports. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998). `[A]n arrest supported by probable cause is not made unlawful by an officer's subjective reliance on, or verbal announcement of, an offense different from the one for which probable cause exists.' State v. Huff, 64 Wn. App. 641, 646, 826 P.2d 698 (1992). Here, because Papen had probable cause to arrest Hillsman for obstruction or forgery, his verbal statement that he was arresting Hillsman for an invalid offense did not nullify the arrest. Thus, the trial court did not err in denying the suppression motion made during trial.
B. Search of the Trailer
After finding methamphetamine on Hillsman's person, Papen returned to the trailer and searched the area where Hillsman was standing when Papen originally entered the trailer. Hillsman argues that this search was beyond the scope of the search incident to arrest exception to the warrant requirement. We agree.
A search incident to arrest is an exception to the warrant requirement based on officer safety concerns and the need to prevent the destruction of evidence. State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996). But this exception to the search warrant requirement is narrowly drawn. State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002).
`[A] search incident to arrest is valid under the Fourth Amendment (1) if the object searched was within the arrestee's control when he or she was arrested; and (2) if the events occurring after the arrest but before the search did not render the search unreasonable.' State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992) (citing United States v. Turner, 926 F.2d 883, 887 (9th Cir. 1991)). `An object is, therefore, within the control of an arrestee for the purposes of a search incident to an arrest as long as the object was within the arrestee's reach immediately prior to, or at the moment of, the arrest.' Smith, 119 Wn.2d at 681-82.
Here, Papen instructed the trailer occupants to exit the trailer and properly asked Hillsman for identification. During this discussion, Hillsman gave Papen false and forged identification. Papen then arrested Hillsman outside the trailer. After the arrest, he returned to search the trailer.
Papen testified that he went back in the trailer `[t]o preserve any potential evidence of the crime that he was arrested for.' 2 RP (July 9, 2003) at 99.
In Turner, police arrested a suspect in one room, moved him to another room, and then validly searched the original room. 926 F.2d at 888. The court concluded that the officers' removal of the arrestee before the room was searched was a reasonable safety precaution. Turner, 926 F.2d at 888.
The facts here are distinguishable from Turner. Papen removed Hillsman from the trailer before he determined whether there was probable cause to arrest him. He was arrested outside the trailer and the gym bag containing the handgun was not in Hillsman's control. The officer's valid concerns with officer safety and the destruction of evidence were not an issue once the trailer occupants were outside, and the arrest did not justify re-intruding into the trailer.
The trial court erred in denying Hillsman's pretrial suppression motion as to the weapon only. Because of the sentencing consequences of a conviction for first degree possession of a firearm, the error was not harmless.
We do not address Hillsman's other assignments of error that relate to the firearm charges and sentencing consequences because we hold that evidence of the firearm was improperly admitted and we reverse and vacate that conviction.
Similarly, because we reverse the firearm conviction and affirm the search of Hillsman's person, we do not discuss Hillsman's ineffective assistance of counsel claims. Counsel's timeliness of the motion to suppress drug and weapon evidence during trial is irrelevant given our determination that the trial court erred in not suppressing the evidence of the firearm and did not err in admitting the methamphetamine.
We reverse and vacate the unlawful possession of a firearm conviction and the related sentencing consequences. We affirm the drug and forgery convictions and remand for resentencing consistent with this opinion.
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.
MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.