Opinion
No. 36962-1-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-03169-5, Kitty-Ann van Doorninck, J., entered November 2, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Kenneth Opher appeals his conviction of unlawful possession of a controlled substance, methamphetamine, claiming that trial counsel provided ineffective representation in failing to challenge the legality of his detention as a passenger in a vehicle. We affirm.
Facts
Because no CrR 3.6 hearing was held, we have a limited record. On June 17, 2007, Tacoma Police Officer Brian Kelley stopped a blue Ford Taurus sedan in the 2800 block of South Cushman in Tacoma because a registration check showed that the vehicle owner was a missing or endangered person. The car had four occupants. Kenneth Opher was the front-seat passenger. After Kelley stopped the car, Sergeant Barry Paris assisted. They asked the passengers to identify themselves. Opher identified himself as Kevin Presley and gave his date of birth as July 9, 1964.
Paris checked two databases to verify this information but found no records for a Kevin Presley. He told this to Kelley and Kelley asked Opher again for his name, explaining that if he was giving false information, he would arrest him for obstructing a police officer. Opher insisted that he was Kevin Presley.
Kelley then arrested Opher and Opher made several incriminating statements. He told Kelley that nothing in the car was his, that if Kelley discovered anything, it would not be real, that he smokes dope, and that if there was anything in the car, he would have smoked it.
Apparently several of the vehicle's occupants had outstanding warrants and were arrested. Kelley and Paris then searched the car incident to these arrests and discovered cocaine in the handle of the passenger side door. They also discovered cocaine in the front open portion of the center console, between Opher and the driver. A corrections officer at the Pierce County Jail identified Opher.
The State charged Opher with unlawful possession of a controlled substance and with obstructing a police officer. Opher challenged the admission of his statements in a CrR 3.5 pretrial hearing, but the court ruled that the statements were both spontaneous and followed Miranda warnings. In addition to Kelley and Paris, a forensic scientist and a property room custodian testified at trial. Opher did not testify. The jury found Opher guilty of both counts and the court imposed a 24-month sentence for the cocaine charge and a 365-day suspended sentence for the obstruction charge. Opher appeals.
A violation of RCW 69.50.4013(1).
A violation of RCW 9A.76.020(1).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
analysis
Opher claims on appeal that trial counsel deprived him of effective representation because counsel failed to challenge the legality of his detention and, had he done so, all the evidence against him would have been inadmissible at trial.
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting counsel's conduct. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995).
Article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision prohibits law enforcement officers from requesting identification from passengers for investigative purposes unless there is an independent basis that justifies the request. State v. Rankin, 151 Wn.2d 689, 699, 92 P.3d 202 (2004). "An `independent basis' is an `articulable suspicion of criminal activity.'" State v. Brown, 154 Wn.2d 787, 796, 117 P.3d 336 (2005) (citing Rankin, 151 Wn.2d at 699). A mere request for identification from a passenger for investigatory purposes constitutes a seizure. Rankin, 151 Wn.2d at 697. Requesting identification in order to run a warrant and record check is an "investigative purpose" that runs afoul of the prohibition. Brown, 154 Wn.2d at 797-98. Evidence obtained in violation of article I, section 7 must be suppressed. Rankin, 151 Wn.3d at 699.
Rankin involved a lawful traffic stop where the police asked the passengers for identification. The officer used Rankin's identification to find an outstanding warrant. A second passenger dropped a baggie containing white powder when he reached into his pocket to retrieve his identification. Our Supreme Court held that an unlawful seizure occurred in both instances because the officer requested the passengers' identification without a reasonable suspicion of criminal activity.
In Brown, the Supreme Court applied Rankin to facts somewhat similar to those presented here. Brown, 154 Wn.2d 787. Brown was a passenger in a car that police lawfully stopped for a traffic infraction. An officer asked Brown to give his name, birth date, and state of residence. Brown gave the name Jemeiah Johnson. Brown, 154 Wn.2d at 791 n. 2. When a warrants check failed to find any matching records, the officer asked for identification and, with permission, the officer searched Brown's pockets, discovering forged credit cards.
Our Supreme Court held that the officer unconstitutionally seized Brown when he first asked his name and ran a warrants check without any articulable suspicion of wrongdoing. Brown, 154 Wn.2d at 797. The Court reaffirmed Rankin's holding that the mere request for identification without articulable suspicion of wrongdoing constitutes an unconstitutional seizure under article I, section 7.
While the situation here is similar, it is different in one very important respect; namely, Officer Kelley stopped the car as part of his community caretaking function, not for a traffic infraction. Division One of this court recognized this exception in State v. Moore, 129 Wn. App. 870, 120 P.3d 635 (2005), explaining:
Moore does not dispute that there is a significant public interest in having police perform the community caretaking function of locating a person listed in an official database as "missing/endangered." Indeed, this court has previously observed that when "an officer believes in good faith that someone's health or safety may be endangered . . . public policy does not demand that the officer delay any attempt to determine if assistance is needed and offer assistance while a warrant is obtained." This court further stated that "the officer could be considered derelict by not acting promptly to ascertain if someone needed help."
Moore, 129 Wn. App. at 880-81 (quoting State v. Gocken, 71 Wn. App. 267, 276, 857 P.2d 1074 (1993)). Nonetheless, "a routine safety check must (1) be necessary and strictly relevant to the community caretaking function and (2) end when reasons for initiating an encounter are fully dispelled." Moore, 129 Wn. App. at 880 (citing State v. Acrey, 148 Wn.2d 738, 750, 64 P.3d 594 (2003)).
Applying this balancing test here, it is clear that the initial stop was necessary and relevant to the community caretaking function. The record, however, does not show when or if the reasons for the encounter were dispelled as the officers did not testify about the driver or about when or whether their concerns about her safety dispelled.
What the record shows is that Office Kelley stopped the vehicle because of a registration flag indicating that the vehicle owner was an endangered or missing person. The record suggests that the officers asked the passengers their names and birthdates as part of this investigation into the driver's safety and not to ascertain if the passengers had outstanding warrants. The officers had a duty to find out if the driver was indeed safe and if the people with her were a danger to her safety. It did not exceed the scope of the caretaking function for the officers to request identification and check the passengers' records. In the course of this investigation, Officer Kelley suspected that Opher was providing false information that justified a criminal investigation. As the Moore court concluded:
Sergeant Hamilton stopped the car because its registered owner was listed as missing/endangered. She pursued her noncriminal investigation to the point of receiving information that she was likely talking to someone who had given false information in response to her questions and who was likely the subject of an outstanding felony warrant.
We conclude that the police validly exercised the community caretaking function to the point of receiving information that suggested a criminal investigation was necessary.
Moore, 129 Wn. App. at 886.
Our review of the record does not suggest that a motion to suppress would have been successful. Therefore, Opher simply fails to overcome the presumption that his counsel provided effective representation.
We affirm.
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.
We Concur:
Armstrong, J.
Quinn-Brintnall, J.