Opinion
No. 36542-1-II.
September 9, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-00229-2, Sally F. Olsen, J., entered June 29, 2007.
Denise Ann Owensby appeals from her conviction of unlawful possession of a controlled substance, methamphetamine. She claims the trial court erred in not suppressing the methamphetamine evidence because she was not under arrest when the police officer discovered this evidence. We affirm.
A violation of RCW 69.50.4013. The jury also convicted her of unlawful possession of marijuana, a violation of RCW 69.50.4014, but she does not appeal that conviction.
FACTS
The facts are largely undisputed and those unchallenged findings of fact are thus the established facts in this case. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981). As discussed below, Owensby assigns error to two findings, L and LI. She also challenges the court's conclusion that the police executed a valid, custodial arrest. We review that conclusion de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). As Owensby's only challenges are to the order denying her suppression motion, we confine our factual recitation to the trial court's findings from the suppression hearing. They are as follows:
Findings of Fact
I.
That on February 5, 2007, the Defendant was in a car in the parking lot of Badda Bing Badda Boom restaurant in Bremerton, Washington between 5:00 PM and 6:00 PM.
II.
That the Defendant was the driver of the vehicle.
III.
That Mark Brittner was the passenger of the vehicle.
IV.
That Detective Plumb and Detective Meador of the Bremerton Police Department Special Operations Group arrived in that parking lot in separate vehicles.
V.
That both detectives were in plain clothes and unmarked vehicles consistent with their duties with the Special Operations Group.
VI.
That as Detective Plumb and Detective Meador exited their vehicles they both smelled the strong oder [sic] of marijuana coming from a nearby car.
VII.
That Detective Plumb was parked closer to the car the marijuana odor was coming from than was Detective Meador.
VIII.
That both Detective Meador and Detective Plumb have training and experience in identifying the odor of marijuana.
IX.
That neither Detective Plumb nor Detective Meador were [sic] mistaken about the odor.
X.
That Detective Plumb approached the driver side of the car and Detective Meador approached the passenger side of the car.
XI.
That the driver side window of the car was either partially down or all the way down.
XII.
That Detective Plumb said he could smell the odor of marijuana as he stood next to the driver side of the car.
XIII.
That the Defendant admitted she was in possession of marijuana as Detective Plumb stood at the driver side of the car.
XIV.
That the Defendant assumed the detectives were police officers.
XV.
That Detective Plumb ordered the Defendant out of the car.
XVI.
That the Defendant had a marijuana cigarette in her hand as she exited the car.
XVII.
That Detective Plumb took the Defendant's identification.
XVIII.
That Detective Plumb placed the Defendant towards the rear of the car.
XIX.
That Detective May of the Bremerton Police Department Special Operations Group arrived on the scene after the Defendant had been removed from the car.
XX.
That Detective Plumb told Detective May to watch the Defendant.
XXI.
That Detective May was told to watch the passenger when he was removed from the car.
XXII.
That Detective May watched the Defendant and the passenger while the other detectives searched the interior of the car incident to arrest.
XXIII.
That Detective Meador and Detective May recall that they heard Detective Plumb say that the Defendant was under arrest.
XXIV.
That Detective May recalls that Detective Plumb told the Defendant she was under arrest and pointed at her.
XXV.
That Detective May recalls that Detective Plumb told the Defendant she was under arrest prior to Detective May searching the Defendant's person.
XXVI.
That Detective May did an initial search of the Defendant while she was at the rear of the car.
XXVII.
That during the initial search, Detective May felt something in the coin pocket of the Defendant's pants.
XXVIII.
That Detective May stopped his search to wait for the other officers to finish searching the interior of the car.
XXIX.
That Detective May waited for the officers to finish searching the car because the Defendant and the passenger were standing at the rear of the car and he did not feel safe searching the Defendant without backup.
XXX.
That Detective May felt that he would be too distracted to search the Defendant without backup.
XXXI.
That Detective May stopped his search and waited for another detective to be present.
XXXII.
That Detective May remained with the Defendant the entire time he waited for another detective to be present for the continued search.
XXXIII.
That Detective Meador investigated the passenger, ran his name, and found he had no warrants.
XXXIV.
That Detective Meador told the passenger he was free to leave the scene.
XXXV.
That the Defendant did not try to leave when the passenger was released.
XXXVI.
That after the passenger left, Detective May continued his search of the Defendant, asking her to pull the item he had previously felt from her packet.
XXXVII.
That the Defendant told Detective May the pocket was sewn shut.
XXXVIII.
That Detective May told the Defendant that this was not true because he has [sic] placed his finger in the pocket earlier.
XXXIX.
That the Defendant told Detective May that her finger was stuck in the pocket.
XL.
That Detective May reached in the pocket and found a plastic wrapper with what appeared to be methamphetamine in it.
XLI.
That the substance was tested on the scene and it was confirmed to be methamphetamine.
XLII.
That all three detectives confirmed that at no time was the Defendant released from the scene or free to leave.
XLIII.
That Detective Meador said the Defendant was not handcuffed until she was read her Miranda rights.
XLIV.
That the Defendant said she was handcuffed the entire time.
XLV.
That the Defendant's recollection of events might not be clear because she admitted to have inhaled marijuana just before the detectives approached her car.
XLVI.
That marijuana has an effect on memory.
XLVII.
That marijuana could have affected the Defendant's perception.
XLVIII.
That the Defendant stated she was feeling faint and having difficulty standing when she was removed from the car.
XLIX.
That the Defendant's perception of the incident could have been affected by these factors.
L.
That the detectives did not say the Defendant was free to leave.
LI.
That there was no manifestation of intent by any of the detectives, verbal or otherwise, that they had any intent to release the Defendant.
Conclusions of Law
I.
That the above-entitled Court has jurisdiction over the parties and the subject matter of this action.
II.
That the subjective intent of the officers is not a factor to be considered under Radka. That under the totality of the circumstances and using the reasonable detainee test, a reasonable person in the Defendant's situation would have believed they were under arrest.
III.
That there was a valid, custodial arrest of the Defendant.
IV.
That under the totality of the circumstances and using the reasonable detainee test, a reasonable person in the Defendant's situation would have believed they were under arrest.
Clerk's Papers (CP) at 32-37. Three additional witnesses testified at trial. One testified that one substance found during the arrest and search was marijuana. A second testified that the substance found in Owensby's coin pocket was methamphetamine. And a third, Owensby's brother's girl friend, testified that she and Owensby had shopped that morning at a thrift store and purchased the jeans that Owensby was wearing during her arrest. A jury convicted Owensby of unlawful possession of methamphetamine and unlawful possession of marijuana. She appeals.
ANALYSIS
I. Findings of Fact
As we noted above, Owensby assigns error to two of the trial court's findings of fact, L and LI. On review, we look to the record from the suppression hearing in order to determine if substantial evidence supports these findings. Hill, 123 Wn.2d at 647.
Finding L provided: "That the detectives did not say the Defendant was free to leave." CP at 36. The following testimony supports this finding. Detective Plumb testified:
[Defense Counsel:] Before you were advised that methamphetamine was found, had you, at any point, told the Defendant that she was free to leave the scene?
[Detective Plumb:] Never.
[Defense Counsel:] Had you released her from the scene?
[Detective Plumb:] No.
[Defense Counsel:] If she had tried to leave the scene prior to you finding out there was methamphetamine, what would you have done?
[Detective Plumb:] Stopped her, physically.
Report of Proceedings (RP) (Apr. 26, 2008) at 48. Officer May testified:
[Prosecutor:] At any point while you were with her, the Defendant, before you found the methamphetamine, had you told her that she could leave?
[Officer May:] No.
[Prosecutor:] Had you released her from the scene?
[Officer May:] No.
[Prosecutor:] But the passenger had been released; correct?
[Officer May:] At some point.
RP (Apr. 26, 2008) at 64. Detective Meador testified:
[Prosecutor:] At any point prior to when you were notified that methamphetamine was found, had you told the Defendant that she was free to leave the scene?
[Detective Meador:] I did not.
RP (Apr. 26, 2008) at 75. Additionally, the trial court made an unchallenged finding of fact "[t]hat all three detectives confirmed that at no time was the Defendant released from the scene or free to leave." CP at 36. While Owensby's and Bittner's testimony contradicted this testimony, we do not weigh credibility as only the trier of fact has that duty. State v. Haack, 88 Wn. App. 423, 435, 958 P.2d 1001 (1997) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Rather, we look only to whether substantial evidence in the record supports the challenged finding. Here it does.
Finding LI provided: "That there was no manifestation of intent by any of the detectives, verbal or otherwise, that they had any intent to release the Defendant." CP at 36. In addition to the testimony just noted, there was ample evidence that Owensby knew that she was under arrest. Detectives Meador and May testified that Detective Plumb told them that Owensby was under arrest. Detective May testified that Detective Plumb told Owensby that she was under arrest before he searched her. Substantial evidence in the record supports the challenged finding.
II. Conclusions of Law.
Owensby challenges the court's conclusion of law "[t]hat there was a valid, custodial arrest of the Defendant." CP at 37. She relies on State v. Radka, 120 Wn. App. 43, 83 P.3d 1038 (2004), and State v. McKenna, 91 Wn. App. 554, 958 P.2d 1017 (1998), which hold that an officer may not search a detainee once an officer completes his detention and manifests his intent to release the detainee. Common manifestations of an officer's intent include whether the detainee is handcuffed, placed in a patrol car for transport, or told that she is or is not under arrest. Radka, 120 Wn. App. at 49 (citing State v. Craig, 115 Wn. App. 191, 196 n. 8, 61 P.3d 340 (2002)).
Owensby argues that she was not handcuffed when Detective May searched her coin pocket even though there was conflicting testimony about whether the detectives had previously handcuffed her. Further, she was not placed in a patrol car but was allowed to stand at the back of her Jeep during the search. She acknowledges the court's findings from the suppression hearing that Detective Plumb told her that she was under arrest before the detectives searched her car, though she still disputes this finding.
The trial court's findings of fact support its conclusion that Owensby could not have reasonably believed that she was free to go. She was under arrest, told that she was under arrest, and no officer told her that she was free to go. That she was not handcuffed, or handcuffed and later unhandcuffed, and not placed in a patrol car are not sufficient circumstances to overcome the evidence that she was told that she was under arrest. We find no error in the court's conclusion of law.
Owensby also argues that the search of her person resulting in the discovery of methamphetamine was too attenuated from her arrest. Analogizing to the situation in State v. Valdez, 137 Wn. App. 280, 152 P.3d 1048 (2007), she claims that Detective Plumb's search took almost 30 minutes and all he recovered was a misdemeanor amount of marijuana. Only then, after the vehicle search, as the detectives were going into the restaurant, did Detective May begin the second search.
In Valdez, officers searched Valdez's car for 27 minutes, found nothing illegal, and then called for a drug dog that alerted on a panel in the car. The officers then found contraband after dismantling a cup holder and removing insulation. We found that the officers had no basis to conduct a second independent search because the officers had thoroughly searched the vehicle, had no further concerns about officer safety and the destruction of evidence, and lacked probable cause to conduct a warrantless search. 137 Wn. App. at 288-89.
Our circumstances are much different than those in Valdez. First, the detectives had probable cause to arrest Owensby for unlawful possession of marijuana. Second, Detective Plumb took Owensby from the car to the rear of her vehicle and there asked Detective May to watch her while he searched the vehicle. At that point, according to the court's findings of fact, Detective May asked Detective Plumb if Owensby was under arrest. Detective Plumb responded that yes she was under arrest. Detective May then performed a pat-down search, felt something in Owensby's coin pocket, decided not to search her until another officer could help him, and did so after Detective Meador released the passenger. The search was not attenuated from the arrest.
The trial court's findings of fact support its conclusion of law that the detectives recovered the methamphetamine during a lawful search incident to custodial arrest.
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.
Armstrong, J., Hunt, J., concur.