Opinion
No. 51555-1-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-00093-9. Judgment or order under review. Date filed: 12/20/2002. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Daniel Jason Clark, King County Prosecuting Attorney, W554 King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Aaron Johnson stopped the car he was driving after a patrol car following him activated its emergency equipment. After being ordered out of the vehicle at gunpoint, Johnson and the other occupant were directed over to the patrol car where they were handcuffed and detained. Within Johnson's vehicle, police found stereo equipment stolen in a recent vehicle prowl. Before his trial on charges of possessing stolen property and malicious mischief, Johnson unsuccessfully moved to suppress the stolen items on grounds that he had been seized and searched illegally. In this appeal, Johnson again contends the trial court erred in denying his suppression motion. But because the trial court did not err in concluding that police would inevitably have discovered the incriminating evidence through lawful means despite any constitutional violation, we affirm.
FACTS
One afternoon, two men broke into a vehicle in a parking lot outside a Boeing building in Renton and stole some audio equipment. Two individuals witnessed the crime and reported their observations to police. Within a matter of minutes, a police officer arrived on the scene and observed a car with a damaged door lock and a missing in-dash stereo. A short distance away, another officer, Officer Gray, observed a white sedan occupied by two men who generally matched the physical descriptions of the suspects. A Boeing security vehicle pulled in behind the white sedan and the driver began gesturing towards the white sedan. As the white sedan started to accelerate away, Officer Gray activated his patrol car's emergency lights and followed the white sedan for several blocks until it stopped. The driver of the car, later identified as Johnson, and his passenger were ordered out of the vehicle at gunpoint and directed over to Officer Gray and another responding officer. After Johnson and his passenger were handcuffed and placed in patrol cars, Officer Gray approached Johnson's vehicle and observed several audio components with dangling wires lying on the back seat and floorboard. The police officer also observed several tools, including a door lock puncher, wire cutters, pliers and screwdrivers. A few minutes later, one of the eyewitnesses to the crime confirmed that the white sedan was the same vehicle in which the suspects originally fled. Johnson was thereafter charged with possession of stolen property in the second degree and malicious mischief in the second degree.
Johnson filed a pretrial motion to suppress the stolen stereo equipment recovered by police as a result of the warrantless search of his car. He argued the officers had illegally detained him and that the unlawful detention tainted the subsequent search during which police found the property in his car. The State apparently filed a trial brief in which it opposed the motion.
At the CrR 3.6 suppression hearing, the prosecutor described the nature of an agreement he had reached with defense counsel:
Defense counsel has agreed to stipulate in the interest of time. Defense and the State have agreed to stipulate to the facts as related in the State's brief. I guess the State's only concern with that is obviously the brief, the facts section, was not laid out in order to be a complete record. For instance, I indicated that the defendant matched the description that was relayed. I didn't say that the officer said he had short, black hair in the description. He had `X's' in the description. But I don't think that will be an issue. I think the main issue is whether or not the description itself was specific enough to provide reasonable suspicion to pull the car over; and I think that for those purposes the facts are quite appropriate. That wound up becoming an issue. The officers are still outside and we could hear testimony from them. After hearing argument from both Johnson and the State, the trial court determined that the stop initiated by Officer Gray should have been accomplished without guns being displayed and that the officers had overreacted regarding their safety concerns. The court nevertheless denied Johnson's suppression motion because the evidence seized `would have been discovered inevitably and, as such is admissible under the doctrine of inevitable discovery.' Following a bench trial based on stipulated evidence, Johnson was found guilty as charged. This appeal followed.
DECISION
The primary issue on appeal is whether the trial court properly denied Johnson's motion to suppress the evidence seized by police. A ruling on a motion to suppress will be affirmed if substantial evidence supports the material findings of fact and those findings support the conclusions of law. Unchallenged findings are verities on appeal. Johnson has not assigned error to any findings of fact impacting the court's conclusion that the doctrine of inevitable discovery applies here. We review conclusions of law de novo.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
Ross, 106 Wn. App. at 880.
The fourth amendment of the United States Constitution and article I, section 7 of the Washington Constitution protect individuals from unreasonable seizures and searches by the government. `As a general rule, warrantless searches and seizures are per se unreasonable.' Evidence seized in a warrantless search will generally be excluded from admission unless it meets one of the narrowly drawn exceptions.
State v. Gocken, 71 Wn. App. 267, 274, 857 P.2d 1074 (1993).
State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980) (citing Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).
Houser, 95 Wn.2d at 149.
Johnson does not dispute that the police were justified in initially stopping his vehicle. Rather he argues only that the police officers exceeded the proper scope of that initial intrusion when they displayed their firearms, ordered Johnson out of the car, handcuffed him, and placed him in the back of a patrol car without asking him any questions. Johnson argues that, because the officers lacked probable cause to arrest him, this `high-risk' stop violated Johnson's rights under the state and federal constitutions. Thus, Johnson argues the incriminating evidence discovered by police should have been suppressed as fruit of an illegal detention. We disagree.
Here the trial court agreed with Johnson that the officers exceeded the proper scope of an investigatory stop by drawing their weapons and ordering Johnson out of his vehicle. `When an individual is seized without an arrest warrant, the seizure must be justified at its inception and reasonably related in scope to the circumstances justifying the seizure in the first place.' The trial court in this case concluded that, because the challenged evidence would inevitably have been discovered through lawful means, it was admissible under the inevitable discovery rule despite the constitutional violation.
State v. Avila-Avina, 99 Wn. App. 9, 14, 991 P.2d 720 (2000).
Johnson relies on State v. Williams to support his argument. There, police officers were investigating the report of a burglary alarm being activated when they stopped a car as it was starting to drive away from the area. The officers ordered the defendant out of the car, frisked him, handcuffed him, and placed him in a patrol car. In finding the nature of the intrusion far exceeded the scope of a permissible investigatory stop, the court in Williams concluded that the evidence taken from the defendant's vehicle was illegally seized.
102 Wn.2d 733, 689 P.2d 1065 (1984).
Williams is not controlling here, however, because it was decided before the inevitable discovery rule was adopted in Washington.
See State v. Feller, 60 Wn. App. 678, 682, 806 P.2d 776 (1991) (declining to address the State's inevitable discovery argument because the rule had not been adopted in Washington).
The doctrine of inevitable discovery is an exception to the exclusionary rule and allows the admission of unlawfully obtained evidence where the State proves, by a preponderance of the evidence, that the same evidence would have been found using `proper and predictable investigatory procedures' and that the police did not act unreasonably in an attempt to accelerate discovery. If the outcome would have been the same without the unlawful police conduct, excluding the evidence `defies logic and common sense' because the police would then be in a worse position than if they had not performed the illegality.
State v. Richman, 85 Wn. App. 568, 577, 933 P.2d 1088 (1997).
Avila-Avina, 99 Wn. App. at 18 (quoting Richman, 85 Wn. App. at 577).
Here, the trial court found that the officers' decision to conduct a high-risk stop was not motivated by a desire to accelerate discovery and that Officer Gray `would have approached the car anyway and noticed the stereos and related tools when he went to contact the defendants,' regardless of whether a high-risk stop was preformed. Johnson has not challenged either of these determinations, and we decline to address them further. Rather, Johnson argues only that the inevitable discovery rule is inapplicable because there would be `no incentive for the state to comply with article 1, section 7's requirement that the investigative methods employed by police be the least intrusive reasonably available.' As the State points out, however, the police in this case drew their weapons when confronting two unknown persons suspected of committing a vehicle prowl moments before in broad daylight. While the officers' concerns for their safety may not have been justified under the circumstances, the force they used neither constituted a search nor resulted in the discovery of any new or material evidence.
Brief of Appellant at 22.
See State v. Belieu, 112 Wn.2d 587, 604, 773 P.2d 46 (1989) ('Generally, a suspicion of burglary by itself would not support an inference that a suspect was armed.'); but see State v. Harvey, 41 Wn. App. 870, 875, 707 P.2d 146 (1985) (officer justified in making a protective search of a burglary suspect on the ground that it is well known that burglars often carry weapons).
Contrary to Johnson's argument, there is no reason to suspect that applying inevitable discovery here will necessarily lead to an increase in the number of times police draw their weapons or handcuff suspects during an investigatory stop. `No hard and fast rule governs the display of weapons in an investigatory stop.' The inevitable discovery rule applies in this case not because of the high-risk stop, but in spite of it. Had the incriminating evidence not been in open view in the white sedan driven by Johnson, it is highly unlikely the State would have been able to establish that discovery of the evidence was inevitable. We conclude the trial court did not err in determining that predictable and proper investigatory procedures would have inevitably resulted in the discovery of the stolen items and other incriminating evidence. Johnson's motion to suppress was properly denied.
Belieu, 112 Wn.2d at 600.
Johnson has also assigned error to a number of statements contained in the CrR 3.6 written findings of fact. We review those findings to determine whether they are supported by substantial evidence. `Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.' Even assuming Johnson's challenge to the adequacy of the court's written findings was properly preserved for our review, there is no reversible error. The challenged portions of the findings involve relatively minor details surrounding the encounter and are not essential to the trial court's ultimate determination that the inevitable discovery rule applies. `[A]n erroneous finding of fact not materially affecting the conclusions of law is not prejudicial and does not warrant a reversal.'
Hill, 123 Wn.2d at 647.
Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993)).
The trial court based its findings of fact on the recitation of the facts contained in the State's trial brief. That brief has not been included as part of the record on appeal. Without the State's trial brief, we cannot conduct the review necessary to determine whether the court's findings are supported by substantial evidence. An appellant `has the burden of perfecting the record so that this court has all relevant evidence.' State v. Armstrong, 91 Wn. App. 635, 639, 959 P.2d 1128 (1998).
State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).
Affirmed.
APPELWICK, KENNEDY and COLEMAN, JJ., concur.