Opinion
Nos. 29582-2-II (consolidated with), 29647-1-II
Filed: June 29, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-05819-5. Judgment or order under review. Date filed: 11/12/2002. Judge signing: Hon. Bruce W. Cohoe.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Tyrease Jamarr Phillips appeals his conviction for one count of unlawful possession of methamphetamine with a firearm enhancement, arguing that the trial court erred when it admitted the methamphetamine seized during a warrantless search of his vehicle and that his trial counsel was constitutionally ineffective for failing to move to suppress the methamphetamine. Because Phillips cannot meet his burden of showing that admission of the evidence was a manifest error and that his counsel was ineffective, we affirm.
Facts
The unchallenged facts from Tyrease Jamarr Phillips's bench trial are as follows. On November 7, 2001, Pierce County Sheriff's Deputies Ryan Larson and Leslie Bunton were on routine patrol in a marked vehicle. When the deputies saw a vehicle with switched registration tabs, they activated the patrol car's overhead lights to stop the car. The driver and sole occupant of the vehicle was Tyrease Phillips. Instead of stopping, the vehicle accelerated away, continuing 'northbound on McKinley Avenue from 72nd Street.' I Report of Proceedings (RP) at 39. Deputy Larson activated the patrol car's siren and auxiliary lights, but the vehicle continued, traveling at speeds in excess of 60 m.p.h. in a 35 m.p.h. zone.
Unchallenged facts adduced at a bench trial are verities on appeal. State v. Pauling, 149 Wn.2d 381, 391, 69 P.3d 331, cert. denied, 124 S.Ct. 470 (2003).
Phillips continued northbound until he reached 65th Street, where he turned eastbound and continued a short distance. Phillips then jumped out of his vehicle while it was traveling at 35 to 40 m.p.h. Larson thought the vehicle pursuit continued from about the 7000 block of McKinley Avenue to 65th Street to the 1100 or 1200 block of 65th Street. Larson testified that Phillips's vehicle 'continued rolling down the street and kind of went off to the right. And there's an elementary school there, and it crashed through the fence at the elementary school and came to a stop.' IRP at 41.
After exiting his moving vehicle and tumbling down the street, Phillips ran eastbound on 65th Street, ignoring the deputies' commands to stop. Both deputies chased Phillips. Initially, Bunton was 'a good distance behind' Phillips, but Larson overtook him and started gaining ground on Phillips. I RP at 42. Bunton went northbound to cut Phillips off in case he ran north. At some point, Phillips 'went to run northbound through a yard,' but 'as he went to cut through the yard, he stumbled over [a high curb] and kind of fell down onto his chest area.' I RP at 42-43.
Larson reached Phillips as he stood up. Phillips told Larson he had a gun and Larson struck him on the shoulder with his flashlight. After struggling with Phillips, Larson subdued and handcuffed him. Larson found a loaded Glock 40 mm handgun in a holster on Phillips's waistband And a search incident to Phillips's arrest yielded $800.67 in cash, two more rounds for the Glock, and a box of sandwich baggies.
During a search of Phillips's vehicle, Deputy Larson found a tupperware container with two plastic baggies containing methamphetamine and one containing methamphetamine residue. When Deputy Bunton arrived, he advised Phillips of his Miranda rights. Phillips told the deputies that he had seen them during the vehicle and foot pursuits but did not stop because he had outstanding warrants, methamphetamine, and the Glock. While the record is not entirely clear on this point, it appears that Deputy Larson searched the vehicle and found the methamphetamine before Phillips admitted he had methamphetamine.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The State charged Phillips with one count of possession of methamphetamine with intent to deliver while armed with a firearm, second degree unlawful possession of a firearm, attempting to elude a pursuing police vehicle while armed with a firearm, and two counts of bail jumping. Following a bench trial, the court found Phillips guilty on the lesser included charge of unlawful possession of a controlled substance, second degree unlawful possession of a firearm, and one of the bail jumping counts. The court found that Phillips was armed with a deadly weapon when he possessed methamphetamine and when he attempted to elude the police.
Analysis
Phillips argues that it was reversible error to admit the evidence obtained during the search of his vehicle and that his counsel was constitutionally ineffective for failing to move to suppress it.
I. Failure to Move to Suppress
While we generally will not consider issues raised for the first time on appeal, we will if it is "a manifest error affecting a constitutional right." State v. Contreras, 92 Wn. App. 307, 311, 966 P.2d 915 (1998) (quoting RAP 2.5(a)(3)). But RAP 2.5(a)(3) is an exception to the general rule and is not intended to afford criminal defendants new trials whenever they identify a constitutional issue not raised in the trial court. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). The claimed error must be manifest, i.e., truly of constitutional magnitude. McFarland, 127 Wn.2d at 333. An appellant must demonstrate actual prejudice to establish that the error is 'manifest.' Contreras, 92 Wn. App. at 311 (quoting State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992)). And '[i]f the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.' McFarland, 127 Wn.2d at 333 (citing State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993)). When the alleged constitutional error arises from a failure to move to suppress, the defendant "must show the trial court likely would have granted the motion." Contreras, 92 Wn. App. at 312 (quoting McFarland, 127 Wn.2d at 334). Absent actual prejudice, the claimed error is not manifest and therefore is not reviewable under RAP 2.5(a)(3). McFarland, 127 Wn.2d at 334. Phillips acknowledges that the court made no factual findings as to the car search, but argues the trial record is sufficient to review the issue. We disagree.
Here, Phillips asserts that the State relied on the 'search incident to arrest' exception to the search warrant requirement. 'During the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence.' State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986). Accordingly, an officer's right to search a vehicle's passenger compartment immediately after a suspect's arrest does not terminate because the suspect has been handcuffed and placed in a police car. State v. Fladebo, 113 Wn.2d 388, 395-97, 779 P.2d 707 (1989). When the State invokes the Stroud search incident to arrest exception for a vehicle's passenger compartment, it must prove close physical and temporal proximity between the suspect and the area searched. State v. Turner, 114 Wn. App. 653, 657, 59 P.3d 711 (2002). The key question when applying Stroud is whether the arrestee had ready access to or immediate control over the passenger compartment at the time of arrest. State v. Johnston, 107 Wn. App. 280, 285, 28 P.3d 775 (2001), review denied, 145 Wn.2d 1021 (2002); State v. Porter, 102 Wn. App. 327, 333, 6 P.3d 1245 (2000).
This is often a highly fact-specific question. Compare Turner, 114 Wn. App. 653 (search invalid absent evidence of suspect's proximity to vehicle); Johnston, 107 Wn. App. 280 (search invalid where suspects arrested after they left car, spent unspecified length of time in store and record did not show how far away they were from car); State v. Wheless, 103 Wn. App. 749, 14 P.3d 184 (2000) (search of vehicle in parking lot invalid where suspect arrested in tavern); Porter, 102 Wn. App. 327 (search invalid where arrest of suspect's son occurred 300 feet from vehicle); State v. Boyce, 52 Wn. App. 274, 758 P.2d 1017 (1988) (invalid search where suspect completely removed from scene) with Stroud, 106 Wn.2d at 145 (search valid where one suspect stood in the 'swing of the open passenger door' and the other suspect was 'a couple of feet' from the first suspect and the vehicle); State v. Bradley, 105 Wn. App. 30, 33, 18 P.3d 602, 27 P.3d 613 (2001) (search valid where suspect approached vehicle, leaned into it, and walked 10 to 12 feet away, but left door 'somewhat ajar').
While the record reveals the general circumstances surrounding Phillips's arrest and the search of his vehicle, we cannot say with the required degree of specificity how far he was from his vehicle when he was arrested. And although it appears Larson searched the vehicle before Phillips made his statement that he fled in part because of the methamphetamine he had in the vehicle, the record is also unclear on this point.
Moreover, the failure to litigate this issue precluded the State from establishing other reasons supporting the search. Phillips may have consented to the search, State v. Cantrell, 124 Wn.2d 183, 187, 875 P.2d 1208 (1994); he may have lost any expectation of privacy in the car by abandoning it, State v. Kealey, 80 Wn. App. 162, 171-72, 907 P.2d 319 (1995); or the police may have intended to inventory the car, thus leading to an inevitable discovery. State v. Thompson, 112 Wn. App. 787, 802, 51 P.3d 143 (2002), review granted, 148 Wn.2d 1020 (2003). Because the facts necessary to adjudicate these issues are not sufficiently clear from the record, the error is not manifest and we cannot consider it for the first time on appeal.
II. Ineffective Assistance of Counsel
Phillips also argues that his counsel was constitutionally ineffective for not moving to suppress the evidence found in his vehicle.
Our state and federal constitutions guarantee criminal defendants the right to effective assistance of counsel. Washington Const. art. I, sec. 22; U.S. Const. amend. VI; XIV. To show ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). We give great deference to counsel's performance and our analysis begins with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335.
Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). But a failure to move to suppress is not per se deficient representation. McFarland, 127 Wn.2d at 336. And when a defendant brings a direct appeal, we will not consider matters outside the trial record and the burden is on the defendant to show deficient representation based on the record below. McFarland, 127 Wn.2d at 335. If a defendant wishes to raise issues that require evidence or facts outside this record, he must do so through a personal restraint petition. McFarland, 127 Wn.2d at 335. Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re the Pers. Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). And absent an affirmative showing that the suppression motion would have been granted, there is no showing of actual prejudice. Contreras, 92 Wn. App. at 319 (quoting McFarland, 127 Wn.2d at 337 n. 4).
Here, the inadequacy of the trial record prevents Phillips from overcoming the presumption of effective representation and demonstrating deficient representation. As we have explained, the record does not show how close Phillips was to the car when the officer arrested him. Nor does it show whether he consented to the search or abandoned the car. Finally, the record contains no information on whether the police would have discovered the drugs during an inventory of the car.
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.
SEINFELD, J.P.T. and KENNEDY, J.P.T., JJ., concur.