Opinion
No. 57226-1-I.
October 8, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-00867-7, Nicole MacInnes, J., entered October 21, 2005.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Ellington and Dwyer, JJ.
A jury convicted Jeffry Neff of assault in the third degree and felony hit and run. On appeal, Neff contends the trial court erred in denying his motion to suppress on two grounds: (1) the police did not have reasonable articulable suspicion to detain him under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (2) the unreasonable use of force converted the detention into an arrest without probable cause. Neff also contends the trial court erred in refusing to suppress a photograph taken in violation of his constitutional rights. Last, Neff challenges the requirements to abstain from alcohol and non-prescription drugs and submit to random urinalysis and breathalyzer testing as a condition of electronic home detention (EHD). The trial court did not err in concluding that the police had reasonable suspicion to detain Neff and that his detention of Neff was reasonable. But even if the court erred, the error was harmless beyond a reasonable doubt. And while we conclude the photograph taken by the police violated Neff's constitutional rights, the error was also harmless beyond a reasonable doubt. We affirm the conviction of Neff. Additionally, because the trial court has the statutory authority to prohibit Neff from possessing non-prescription drugs or consuming alcohol without regard to whether these conditions are crime-related, we affirm the judgment and sentence.
FACTS
In the early evening of May 7, 2004, Jared Wilson drove his friend, Jon Johnson, to get his car, which was parked in front of Johnson's Queen Anne apartment building. Wilson's sister, Kelsey Wilson, and her friend, Lauren Miori, were also passengers in the car. Johnson planned to get his car and then follow Wilson. Wilson pulled over at Sixth and Prospect, directly across the street from Johnson's car.
After Johnson got out of the car, Wilson noticed that he had stopped in front of a driveway and was blocking the driver of a red truck who was waiting to back out of the driveway. Jeffry and Sharon Neff were in the red, four wheel drive truck in the driveway and they were on their way out to dinner. Neff was the driver.
For purposes of clarity, we refer to Jeffrey Neff as "Neff" and Sharon Neff as "Sharon" and mean no disrespect by doing so.
Jared and Kelsey Wilson testified that while they were still blocking the driveway, the driver of the red truck suddenly backed out, stopping within inches of the car. Wilson then immediately moved his car and drove forward approximately 50 feet. After Neff drove out of the driveway, he continued to driving in reverse, stopping just before hitting Wilson's car. Kelsey Wilson testified that Neff yelled out his window, "[h]ey guys, you looking for some fucking trouble?"
Meanwhile, Johnson crossed the street and gestured to Neff to stop. Johnson said that he walked towards the truck to find out why the driver was so upset and to apologize for blocking his driveway. As Johnson walked around the front of the truck, Neff revved the engine. The truck then lurched forward approximately three times. After Johnson put his hands on the hood of the car, Neff drove the truck forward and struck Johnson. Johnson hit the right front fender, rolled up onto the hood, and fell on his back onto the ground. Neff and Sharon drove off.
Scott Cook, the manager of the apartment building across the street, testified that while he was watching television, he heard tires screeching, looked out the window and saw a red truck backing up the street. When Cook heard yelling outside, he looked out the window again and saw Johnson's feet in the air and the truck driving away. After watching the truck drive away, Cook told his wife to call 911.
Officer Aaron Parker responded to the 911 call. When he arrived, the Seattle Fire Department medics were treating Johnson for injuries to his arm. Officer Parker interviewed Johnson, Jared Wilson, Kelsey Wilson, and Lauren Miori. They each described what happened and said the driver was a clean-shaven white male, in his 40-50's, driving a used red Chevrolet pickup truck. Officer Parker also interviewed Cook. Cook told Officer Parker that he saw the red truck strike Johnson and then drive off. Cook said the truck belonged to the owner of the house across the street and the truck was usually parked in the driveway. Officer Parker asked Cook to call 911 if the truck returned. At 9:00 p.m. that evening, Cook called 911 to report that the truck had returned and was parked in the driveway across the street.
Officer Parker and another officer responded to the 911 call at 9:14 p.m. As the officers walked toward the house, they saw a man step out on the porch who matched descriptions given by the witnesses. The officers then drew their guns but pointed them at the ground. Officer Parker told the man on the porch to walk toward them, backwards, with his hands in the air. Neff put his hands in the air, but did not turn around and walk backwards. Officer Parker had to tell Neff two more times to turn around before he would do so. When Officer Parker told Neff to lie down on his stomach, he did not comply. After Neff got on all fours, Officer Parker handcuffed him. Officer Parker then briefly spoke to Sharon. After Sharon confirmed that Neff was driving the truck when Johnson was knocked to the ground, Officer Parker placed Neff under arrest at 9:27 p.m. Before taking Neff to the police station, Cook also identified Neff as the person who was driving the red truck that hit Johnson.
At the police station, Neff waived his Miranda rights. Neff admitted driving the truck and hitting Johnson, but said Johnson was confrontational. At approximately 1:00 a.m., Officer Parker returned to the Neff's house to take photographs. Officer Parker took several photographs of the truck from the sidewalk. He then walked up the driveway and took a photograph of the front of Neff's truck. Neff's truck was parked next to the house facing the garage door.
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Neff was charged with assault in the second degree and felony hit and run. Before trial, the court ruled that Neff was properly advised of his Miranda rights and his statement was not coerced, but because his statements were self-serving hearsay, they were only admissible for impeachment purposes.
Neff filed a motion to suppress the evidence obtained after his arrest and the photographs taken by Officer Parker. Neff argued the arrest was not supported by probable cause and that the photographs violated his constitutional right to privacy. Officer Parker and Sharon testified at the motion to suppress hearing. Officer Parker said the officers approached with guns drawn, but pointed away because of the serious nature and circumstances of the crime and concern for their own safety. Officer Parker stated that he detained Neff until he could confirm whether he was the driver of the truck. Sharon testified that one of the officers hit Neff in the back, knocked him on the ground, and placed a knee at the base of his skull. Sharon said she talked to Officer Parker for a couple of minutes after Neff was handcuffed. Sharon admitted telling Officer Parker that Neff was driving the truck and Johnson was struck while he was standing in front of the truck. She also admitted that they did not call 911.
The court found that when Officer Parker detained Neff, he was investigating a serious hit and run felony and felony assault and
"at the time that the officer was investigating this incident he didn't know anything about Mr. Neff. He didn't know what had precipitated this incident. All he knew is that someone had allegedly been hit by a truck in the course of this sort of confrontation out in the middle of the street, and now the truck had returned, and he was going to try and determine who the driver was . . . he has no way of knowing how Mr. Neff is going to respond to this encounter. So he is following what he described as police practices. . . ."
The court also found that because the red truck was in the driveway, "[t]he probabilities support that the driver is in the house where the truck was parked." The court concluded that Officer Parker had sufficient grounds to detain Neff under Terry. "The officer had a reasonable suspicion that a crime had occurred under Terry and thus had sufficient legal reason to detain the defendant." The court also denied Neff's motion to suppress the photograph Officer Parker took of the front of the truck.
Each of the eyewitnesses testified at trial on behalf of the State. In addition, both sides called automobile experts to testify. Neff did not testify but Sharon testified on behalf of the defense. Contrary to the account of the eyewitnesses and her previous statement to Officer Parker, Sharon testified that Johnson tried to kick the truck, lost his balance, collided with the truck mirror, and fell to the ground. She also said that Johnson and Wilson made obscene gestures.
The court instructed the jury on the elements of assault in the second degree, the lesser included offense of assault in the third degree, and felony hit and run. The jury found Neff guilty of assault in the third degree and felony hit and run, but not guilty of assault in the second degree.
The court imposed a low end six month sentence and ordered Neff to successfully complete an anger management program. Based on an agreed joint recommendation that Neff serve his sentence on electronic home detention (EHD), the court authorized EHD, subject to a number of conditions. After sentencing, Neff filed a motion to delete and clarify some of the EHD conditions. In the order clarifying the conditions, the court ruled that Neff did not have to undergo substance abuse treatment, but must submit to random urinalysis and breathalyzer testing and abstain from using non-prescription drugs and alcohol while on EHD. Neff appeals.
ANALYSIS
Investigatory Detention
Neff contends the trial court erred in denying his motion to suppress because his detention was not supported by a reasonable suspicion of criminal activity. Neff argues the police detained him based solely on a general description of a clean-shaven white male between 40 and 50 years old. The State asserts the trial court's findings and conclusions establish the police had reasonable suspicion to detain Neff. We review the trial court's findings of fact in a suppression motion for substantial evidence and its conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Whether particular facts constitute a seizure under the Fourth Amendment is a question of law we review de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1994).
Neff assigns error to a number of findings of fact in the trial court's order denying the motion to suppress. But because Neff does not explain why the findings are not supported by substantial evidence, we treat the findings as verities on appeal. See State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Warrantless searches and seizures violate the Fourth Amendment and article I, section 7 of the Washington State Constitution. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). A categorical exception to the warrant requirement is an investigative detention under Terry, 392 U. S. at 21-22; State v. Acrey, 148 Wn.2d 738, 746, 64 P.3d 594 (2003).
Under Terry, an investigative detention occurs when the police briefly seize an individual for questioning based on "specific and articulable," objective facts that give rise to a reasonable suspicion that the individual has been or is about to be involved in a crime. Terry, 392 U.S. at 21-22; Armenta, 134 Wn.2d at 10. In determining the reasonableness of an investigative detention, the court must consider the totality of the circumstances known to the officer at the time, including the officer's training and experience, the location of the stop, and the conduct of the person detained. Acrey, 148 Wn.2d at 738. A detention must be based on more than innocuous facts or an "inarticulable hunch." State v. Pressley, 64 App. 591, 597, 825 P.2d 749 (1992); Terry 392 U.S. at 21-22.
Neff argues that because Officer Parker only had a vague description of the driver, Officer Parker did not have reasonable grounds to detain him. The record does not support Neff's argument. Based on the interviews with the eyewitnesses, Officer Parker knew that a clean-shaven white male in his 40's to 50's was driving the red Chevrolet pickup truck that struck Johnson and drove off. In addition, the apartment manager from across the street, Cook, told Officer Parker that the truck belonged to the owners of the house across the street and was usually parked in the driveway. Before leaving, Officer Parker asked Cook to call 911 if the truck returned. Cook called 911 that night to report the truck had returned and was in the driveway. When Officer Parker responded to the 911 call at 9:14 p.m., a red Chevrolet four by four pickup truck was parked in the driveway of the house across the street from the apartment building. And, as the officers approached the house, a man matching the description of the driver was on the porch. Based on the totality of the circumstances known to Officer Parker as he approached the Neff residence, Parker had reasonable suspicion to justify an investigative detention under Terry.
As an alternative argument, Neff claims that the court erred in denying the motion to suppress the evidence obtained after the unlawful detention because the force used by the police converted the investigative detention into an arrest without probable cause.
"There is no bright line rule for determining when an investigatory stop crosses the line and becomes an arrest." Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002); State v. Belieu, 112 Wn.2d 587, 599, 773 P.2d 46 (1989). Evaluating "whether the police action constituted a Terry stop or an arrest is a fact-specific inquiry based on the totality of the circumstances." Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996); United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). In particular, the court must consider the intrusiveness of the detention and "whether the method used by the police was reasonable given the particular circumstances." Gallegos, 308 F.3d at 991; State v. Wheeler, 108 Wn.2d 230, 737 P.2d 1005 (1987). Other factors in evaluating whether the intrusion is so unreasonable that it cannot be supported by reasonable suspicion are: (1) the purpose of the stop, (2) the amount of physical intrusion on the suspect's liberty, and (3) the duration of the stop. Belieu, 112 Wn.2d at 595-96. Reasonableness is measured from the perspective of a reasonable officer at the time, and not with 20/20 hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396, 397.
In addition, a higher level of police intrusion is allowed for a greater risk and a more violent crime than would be acceptable for a lesser crime. State v. Duncan, 146 Wn.2d at 177. "Courts are reluctant to substitute their judgment for that of police officers in the field." State v. Belieu, 112 Wn.2d at 601. And, while not typically part of a Terry detention, drawing weapons and using handcuffs does not automatically convert an investigatory detention into an arrest. See Gallegos, 308 F.3d at 990 (detention did not exceed scope of investigatory stop based only on a general description. Police ordered man out of truck at gunpoint, handcuffed him, and placed him on back of police car and after 45 minutes learned he was not the right person); United State v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (no arrest when defendants were "forced from their car and made to lie down on wet pavement at gunpoint."); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) (no arrest when suspect was stopped at gunpoint, ordered to lie face down in a ditch and handcuffed); United State v. Jacob, 715 F.2d 1343, 1345-46 (9th Cir. 1983) (no arrest when suspect was removed from car at gunpoint and ordered to lie on ground); United States v. Bantista, 684 F.2d 1286, 1289-90 (9th Cir. 1982) (handcuffing suspect did not convert valid Terry stop into an arrest).
We conclude the record supports the officers' use of force and did not convert the investigative detention of Neff into an arrest. Officer Parker was investigating a felony assault and felony hit and run that occurred earlier that day. The eyewitnesses each described the driver of the truck. And Cook, the manager of the apartment from across the street, told Officer Parker that the red truck belonged to the owners of the house across the street and was usually parked in the driveway. Before leaving, Officer Parker asked Cook to call 911 if the truck returned. At approximately 9:00 p.m., Cook called 911 to report the truck had returned and was parked in the driveway of the house across the street. Officer Parker and another officer arrived at the house at 9:14 p.m. A red Chevrolet pickup truck was parked in the driveway. As they approached the house, Officer Parker said he saw a white male look out the window. After the white male, matching the description given by the eyewitnesses, stepped out onto the porch, the officers drew their guns but pointed them to the ground. When Officer Parker directed Neff to turn around, put his hands up and walk down from the porch, Neff did not immediately follow the directions given. When Neff eventually did so, Officer Parker told him to get down on his stomach. Instead, Neff got on all fours. Officer Parker then handcuffed him. After placing Neff in handcuffs, Officer Parker talked to Sharon. When Sharon confirmed that Neff was driving the red truck that struck Johnson, Officer Parker placed Neff under arrest. Neff was under arrest at 9:27 p.m. After arrest, Cook also confirmed Neff was the person how was driving the truck that hit Johnson.
Officer Parker testified that he drew his gun and placed Neff in handcuffs according to police policy and "for my safety, because the incident I was investigating . . . wasn't a minor offense. It was an assault involving a vehicle and a hit and run."
I — once I realized that he matched the description of the driver I wanted to make sure that I controlled the situation well, because at this point our investigation was showing that it was a felonious type of assault. Basically using a truck to strike somebody would be considered, in my opinion, would be a — using a deadly weapon.
You know, a vehicle hitting someone can easily, based on my training and experience, kill somebody. And based on that I wanted to make sure that I controlled the situation because I was afraid that if someone be willing to hit someone with a truck and leave the scene they might be willing to use any other sort of weapon. So for my safety I need to control the situation.
Officer Parker also testified that he places suspects on the ground because it is the safest way to handcuff someone and that Neff was not cooperating with the directions he gave. And, as the trial court found, "[a]t the time of the detention, officer was investigating a serious crime — Hit and Run Felony, and felony assault; [t]he officer didn't know anything about the defendant or what had precipitated the collision;" and "[t]here is no way for an officer to know how a defendant" is going to respond. . . ." Although in hindsight, it appears the police may have overreacted, on this record, we cannot conclude the police conduct was so unreasonable that the brief investigative detention under Terry was converted to an arrest.
The cases Neff relies on to argue the detention was converted to an arrest are factually distinguishable. In Lambert, the police detained suspects based only on a general similarity of their physical appearance to the actual suspects. Lambert, 98 F.3d at 1184, 1192. In United States v. Delgadillo-Velasquez, the detention was based on an anonymous, inclusive, and generalized description of Latin males. 856 F.2d 1292 (9th Cir. 1988). The police required the suspects to lie face down in the street while they were handcuffed, read them their constitutional rights, and told the suspects they were under arrest. 856 F.2d at 1295.
Neff also cites United States v. Bautista, 684 F.2d 1286 (9th Cir. 1982). But in Bautista, the court rejected the defendant's argument that he was under arrest because he was handcuffed, and held that under the circumstances the detention was reasonable.
Even if the detention was unreasonable and the court erred in denying Neff's motion to suppress, based on the untainted in-court eyewitness identifications of Neff, the error was harmless beyond a reasonable doubt.
A constitutional violation is harmless "if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result, despite the error." State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995). Generally, evidence that is obtained as the result of an unlawful search or seizure must be suppressed. But an illegal arrest does not bar a subsequent prosecution based on untainted evidence. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); State v. Mathe, 102 Wn.2d 537, 688 P.2d 859 (1984).
Here, there was no dispute that Neff was driving the red Chevrolet pickup truck. Johnson and the other three eyewitnesses in the car, Jared Wilson, Kelsey Wilson, and Lauren Miori, each testified at trial and identified Neff as the driver. Neff did not testify, but Sharon testified on his behalf. According to Sharon, Johnson and Wilson made obscene gestures at them, Wilson drove his car toward the truck, and as they were trying to leave, Johnson tried to kick the side of the truck and fell down. In rebuttal, Cook testified that he heard tires screeching, looked out the window, and saw a red truck backing up. When he heard yelling, Cook looked out of the window again and saw feet go up in the air and the truck drive off. By convicting Neff of felony hit and run and assault in the third degree, the jury obviously rejected Sharon Neff's version and found the State's witnesses more credible. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). On this record, even if the detention of Neff violated his constitutional rights based on the untainted in-court eyewitness identifications, we are convinced beyond a reasonable doubt that in the absence of the error, the jury would have reached the same result.
Photograph
Neff also argues the trial erred in denying his motion to suppress the photograph of the front of the truck that Officer Parker took after walking up the driveway to the garage. Neff contends Officer Parker's warrantless entry and investigatory search violated his constitutional rights.
A warrantless search of a constitutionally protected area is unreasonable per se. State v. Hoke, 72 Wn. App. 869, 874, 866 P.2d 670 (1994). But an officer on legitimate business may enter the area of the curtilage of a house that is impliedly open to the public, such as a driveway or walkway leading to the house. State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981). The curtilage is an area that is "?so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection.'" State v. Hoke, 72 Wn. App. at 873-74. However, a substantial and unreasonable departure from the curtilge "or a particularly intrusive method of viewing will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy." Seagull, 95 Wn.2d at 903. The determination of whether the police exceed the scope of the implied invitation and Page 15 violate constitutional rights is based on the facts of each case. Seagull, 95 Wn.2d at 903.
Here, after arresting Neff and taking him to the police precinct, Officer Parker returned to Neff's house at approximately 1:00 a.m. Officer Parker took photographs of Neff's truck from the sidewalk and then walked up the driveway to take a photograph of the front of Neff's truck. In doing so, we conclude Officer Parker unreasonably intruded on Neff's constitutionally protected expectation of privacy. But the error was harmless beyond a reasonable doubt.
The photograph that Parker took of the front of Neff's truck only shows minor damage, a scuff mark, and did not establish that Johnson was hit by the truck. The State's expert witness, Detective Ron Sanders, testified that there was no way for him to determine whether the minor damage depicted in the photograph was connected to the incident. In addition, Neff introduced a number of photographs of the truck and Neff's expert witness, Mark Olson, testified that the scuff marks on the truck were not related to the accident. And during his testimony, Neff introduced a number of photographs of the truck.
Electronic Home Detention
Neff claims the trial court erred by prohibiting him from consuming alcohol or using controlled substances without a valid prescription, and requiring him to submit to random urinalysis and breathalyzer testing every 30 days.
The State concedes that below it agreed to EHD but for the first time on appeal contends Neff is not eligible for EHD and requests remand for resentencing without EHD. But because the State did not file a cross-appeal, we cannot grant the affirmative relief the State requests. See Robinson v. Khan, 89 Wn. App. 418, 420, 948 P.2d 1347 (1998) ("A notice of cross-review is essential if the respondent 'seeks affirmative relief as distinguished from the urging of additional grounds for affirmance.'").
At the sentencing, the court imposed a sentence of six months on the assault count and six months on the hit and run count, to be served concurrently. Based on the joint recommendation of the parties, the court allowed the sentence to be served on EHD, subject to certain conditions. The court stated at the sentencing, "I'm going to do enhanced [EHD], but I'm going to delete some of the requirements on there. I don't think there is any indication that Mr. Neff has any sort of substance abuse issue. So I'm going to delete the requirements related to that." The EHD order entered by the court at sentencing "Conditions of Conduct for Persons Ordered by the King County Superior Court into Electronic Home Detention (EHD) Enhanced" prohibits Neff from consuming alcohol or non-prescription drugs and requires him to submit to testing every 30 days.
You shall not use controlled substances without a valid prescription and shall not consume alcohol beginning from the date of this order. Any use of controlled substances, other than as prescribed by a physician, will be considered a violation. You will submit to urinalysis testing as ordered, including a baseline urinalysis to determine the levels of THC within 5 days of beginning participation in EHD and if the THC level does not decrease in your next urinalysis test, this will be considered a violation. DAJD shall monitor compliance with this condition by random urinalysis and breathalyzer testing [X] or ?2 times every 30 days. Violation of this condition or failure to submit to testing on demand will result in removal from EHD and incarceration into secure detention.
After sentencing, Neff filed a motion to reconsider or clarify the conditions the court imposed for EHD. On November 4, 2005, the court entered an order clarifying its sentence conditions, stating, "[b]ased upon the pleadings and evidence presented, the Court hereby ORDERS that Urinalysis to determine THC levels, random urinalysis testing, random breathalyzer testing and complete abstinence from alcohol are conditions the Court imposes on defendant Jeffry Neff but substance abuse treatment is not required, only anger management."
Contrary to Neff's argument, the trial court has the statutory authority to prohibit Neff from possessing non-prescription controlled substances and consuming alcohol as a condition of EHD, without regard to whether these conditions are crime-related. RCW 9.94A.715(2)(a); RCW 9.94A.700(4) and (5); State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258 (2003). The court also has the statutory authority to order Neff to submit to random urinalysis/breathalyzer testing every 30 days to ensure compliance with these conditions. State v. Riles, 135 Wn.2d 326, 342, 957 P.2d 655 (1998).
There was also some evidence that Neff had been drinking before the incident. State v. Warren, 134 Wn. App. 44, 138 P.3d 1081 (2006).
We affirm.
WE CONCUR: