Opinion
No. 51887-9-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-08351-6. Judgment or order under review. Date filed: 01/21/2003. Judge signing: Hon. Carol a Schapira.
Counsel for Appellant(s), Jeffrey Keys (Appearing Pro Se), Doc #728258, Cedar Creek Correction Center, Post Office Box 37, Littlerock, WA 98556.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Daniel Jason Clark, King County Prosecuting, Attorney, W554 King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Jeffery Keys was charged with possession of a controlled substance after police searched him and found cocaine. Prior to trial, Keys unsuccessfully moved to suppress any and all incriminating evidence. In this appeal, Keys again argues that the evidence should have been suppressed. But because the suppression issues raised on appeal are factually and legally distinct from the ones considered below, Keys' new theories for suppression have not been properly preserved for our review. And because Keys has not demonstrated any prejudice arising from the trial court's late entry of certain written findings of fact and conclusions of law, neither remand nor reversal is required. Accordingly, we affirm.
FACTS
Shortly after midnight, Seattle Police Officer Carpenter was on routine patrol when a security guard approached and informed him that the occupants in a nearby Cadillac were acting suspiciously. Officer Carpenter drove to the location and observed the suspect vehicle parked outside a convenience store. Officer Carpenter then ran the license plate number of the Cadillac through the computer in his patrol car. Within a few minutes or the time it took Officer Carpenter to drive around the convenience store, the officer, using various computer databases, learned that the registered owner of the Cadillac, Mr. Lich Pham, had outstanding misdemeanor and felony warrants for his arrest. As the officer approached the Cadillac a second time, the car drove off. Because the passenger in the front passenger seat of the Cadillac matched the general physical description of Mr. Pham, Officer Carpenter stopped the vehicle. As it turned out, Mr. Pham was a passenger in the Cadillac. Once Mr. Pham admitted his true identity, he was arrested on the outstanding warrants. Following Mr. Pham's arrest, the remaining three occupants, including Keys, were asked to get out of the vehicle. The Cadillac was then searched. During the search, police found a small black bag containing a loaded handgun near where Keys had been sitting. Keys was handcuffed and read his rights. When questioned by Officer Engstrom about the weapon, Keys admitted that his fingerprints would likely be found on the firearm and that he had a quantity of cocaine hidden in his groin area. A subsequent search of Keys located the cocaine. Keys was charged with one count of possession of cocaine and one count of unlawful possession of a firearm.
Keys filed a pretrial motion to suppress "the fruits of the search of Mr. Keys at the time of his arrest as products of an unlawful warrantless stop, search and arrest." He argued that the initial stop of the Cadillac was invalid and that the subsequent search of the black bag was unlawful as well. The State opposed the motion. Officers Carpenter and Engstrom were the only witnesses who testified at the suppression hearing. At the conclusion of that hearing, the court denied Keys' suppression motion.
Following a bench trial, at which a number of police witnesses testified including Officers Carpenter and Engstrom, Keys was found guilty of simple possession and not guilty of the firearm charge. This appeal followed.
DECISION
Keys contends that his conviction for simple possession should be reversed because of the trial court's failure to comply with CrR 3.5, CrR 3.6, and CrR 6.1(d), which require written findings of fact and conclusions of law under certain circumstances. Generally, the failure to enter such findings and conclusions requires remand, not reversal. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998). When the trial court enters findings and conclusions after an appeal is filed, reversal is appropriate only if the appellant establishes prejudice due to the delay or if there is an indication that the findings and conclusion have been tailored to meet the issues raised on appeal. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996); State v. Vailencour, 81 Wn. App. 372, 378, 914 P.2d 767 (1996).
After Keys filed his opening brief on appeal, the trial court entered findings of fact and conclusions of law covering Keys' suppression motion and the bench trial. Keys has not alleged any prejudice caused by the delayed entry of these findings and conclusions. Nor is there any indication the findings of fact were crafted to meet the issues raised on appeal. Neither remand not reversal is warranted.
Keys next contends the trial court improperly denied his motion to suppress evidence illegally seized by police. The fourth amendment of the United States Constitution and article 1, section 7 of the Washington Constitution protect individuals from unreasonable seizures and searches by the government.
State v. Gocken, 71 Wn. App. 267, 274, 857 P.2d 1074 (1993).
Keys contends that he was illegally seized when the police directed him over to the sidewalk beside the Cadillac while the vehicle was being searched. He also argues that police unlawfully arrested him when they frisked and handcuffed each passenger, including Keys, after finding the loaded gun. Keys argues that, because he was seized and arrested illegally, the police violated his rights under the state and federal constitutions. Because the incriminating evidence discovered as a result of the illegal seizure and search should have been suppressed, Keys argues, his conviction for simple possession should be reversed and dismissed. We disagree.
Keys is attempting to raise these arguments for the first time on appeal. Generally, issues raised for the first time on appeal are not subject to review. A recognized exception to this rule exists where there is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). This exception to the general rule exists because constitutional errors "often result in serious injustice to the accused and may adversely affect public perceptions of the fairness and integrity of judicial proceedings." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). However, not every claim of constitutional error may be asserted for the first time on appeal. See State v. O'Neill, 91 Wn. App. 978, 993, 967 P.2d 985 (1998) (failure to raise timely objection to the admission of evidence at trial precludes appellate review).
It has long been the law in this State, and elsewhere that the exclusionary rule may not be invoked for the first time on appeal. In a similar vein, a defendant cannot raise grounds for suppression on appeal that are significantly different from the ones raised at the trial level. United States v. Barrett, 703 F.2d 1076, 1086 n. 17 (9th Cir. 1983) (court refused to consider grounds for suppression not raised at trial level). As the Alaska Supreme Court aptly explained:
State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (a defendant who fails to move to suppress allegedly illegal evidence waives any error associated with the admission of the evidence); State v. Baxter, 68 Wn.2d 416, 423, 413 P.2d 638 (1966) ("The exclusion of improperly obtained evidence is a privilege and can be waived."); State v. Donohoe, 39 Wn. App. 778, 782 n. 5, 695 P.2d 150 (1985) ("Because a defendant can receive complete constitutional protection against the use of illegally obtained evidence through superior court suppression hearing procedures, and because the rights afforded by these constitutional provisions are not 'trial rights' or part of the 'truth-finding function', they can be waived."); 5 Wayne R. LaFave, Search Seizure sec. 11.1(a), at 4 (3d ed. 1996) (objection to illegally obtained evidence may not be raised for the first time after conviction.
The exclusionary rule is not the type of doctrine designed to protect against conviction of the innocent. Rather, it is a prophylactic device to curb improper police conduct and to protect the integrity of the judicial process. Thus, justice does not generally require that it be applied on appeal where it is not urged at trial or where new grounds for its invocation are presented on appeal.
Moreau v. State, 588 P.2d 275, 280 (Alaska 1978).
Keys cites State v. Gallo, 20 Wn. App. 717, 582 P.2d 558 (1978), in support of the proposition that suppression issues will be considered on appeal even though based on a legal theory different from the one asserted at the trial level. In deciding to review the merits of the claim, the court in Gallo held that "the defendant did make a general challenge to this evidence at the suppression hearing, and it is not necessary to point out the precise defect in order to secure review of an alleged invasion of a constitutional right." Gallo, 20 Wn. App. at 724. Here, unlike the situation in Gallo, the core theories for suppression are not only new, but based on discrete facts.
Keys complains in his appellate brief that the trial court failed to make any findings regarding the handcuffing and search of the passengers. But these matters were not germane to the suppression theories asserted at the trial level. See State v. Richard, 4 Wn. App. 415, 427, 482 P.2d 343 (1971) (trial court bears initial and basic responsibility for determining factual matters in passing on legal objections). There was absolutely no argument below that the police officers acted unlawfully, either when they directed Keys over to the sidewalk or when they handcuffed him after discovering the loaded firearm. Rather, Keys argued only that the evidence should be suppressed because the stop of the Cadillac was invalid at its inception and the subsequent search of the passenger compartment of the vehicle, in which the police officers made no attempt to ascertain whether the black bag belonged to anyone other than Mr. Pham, violated the rule announced in State v. Parker, 139 Wn.2d 486, 987 P.2d 73 (1999). As a result, the record was clearly not as developed on the topics Keys now seeks to raise as it might have been had the claims been raised below. Given the numerous ways an individual may seek to suppress evidence, facts that are irrelevant and superfluous under one legal theory for suppression may well be relevant and material under another. While there may be some overlap between the new theories for suppression and the ones raised at the trial level in this case, they are not so inextricably tied to one another that the State would have necessarily presented the same evidence to refute or rebut all the claims. The police officer who helped Officer Carpenter search the Cadillac and who first discovered the black bag and the loaded handgun inside was not even called to testify at the suppression hearing. Under the circumstances, the suppression issues asserted here for the first time have not been sufficiently preserved for our review.
In his briefing on appeal, Keys does not dispute that the Cadillac was lawfully stopped or that "police had the right to search the passenger compartment of the car incident to [Mr. Pham's] arrest." Brief of Appellant at 16.
Affirmed.
APPELWICK and BECKER, JJ., concur.