Opinion
No. 25623-5-III.
October 30, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-01945-9, Salvatore F. Cozza, J., entered October 27, 2006.
Affirmed by unpublished opinion per Stephens, J., concurred in by Sweeney, C.J., and Brown, J.
A jury convicted Edward A. Rodriguez of possession of hydrocodone and possession of heroin. Claiming defense counsel was ineffective for failing to file a motion to suppress, he appeals. We affirm.
FACTS
On April 1, 2006, around 7:00 a.m., Spokane Police Officer Joseph Fausti responded to a call from a homeowner who stated that an unidentified man had been on the porch pounding on the door and moaning.
When Officer Fausti arrived at the scene, he saw the unidentified male described by the complainant leaning against a boat in the driveway. The officer identified himself and asked to see the man's hands. The man did not respond. The man ignored the officer's commands for several minutes. The officer suspected the man was under the influence of some kind of intoxicants. The man had trouble standing and enunciating his words.
Additional officers arrived on the scene. When they were unable to get a response from the man, Officer Fausti removed his wallet from his clothing and found a Washington State identification card, identifying him as the defendant, Mr. Rodriguez.
Officer Fausti ran a record check on Mr. Rodriguez and discovered outstanding warrants and subsequently placed him under arrest. He then conducted a search incident to arrest, and found a loaded syringe and some pills in his pockets. The substance in the syringe field tested positive for heroin. The pills were determined to be hydrocodone.
The State charged Mr. Rodriguez with two counts of possession of a controlled substance — heroin and hydrocodone. Mr. Rodriguez testified in his own defense that he was withdrawing from heroin on the night in question. He was homeless and he had been given a coat to wear by an acquaintance. He claimed he did not know the drugs were in the coat pocket.
The jury convicted Mr. Rodriguez as charged. The court imposed a standard range sentence. This appeal follows.
ANALYSIS
Mr. Rodriguez claims he was denied effective assistance of counsel because defense counsel failed to file a motion to suppress. In order to establish that he received ineffective assistance of counsel, Mr. Rodriguez must show that (1) defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) he was prejudiced by this deficiency, i.e., there is a reasonable probability that but for the deficient conduct the outcome of the proceedings would have been different. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
Counsel's conduct is presumed not to be deficient. Id. However, this presumption can be rebutted if there is no conceivable legitimate trial tactic explaining counsel's performance. Id.
The failure to bring a motion to suppress is not automatically deficient representation. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). To prevail on this claim, Mr. Rodriguez must show the court probably would have granted such a motion had it been brought. State v. Contreras, 92 Wn. App. 307, 318-19, 966 P.2d 915 (1998).
Mr. Rodriguez claims counsel should have made a motion to suppress because the officer's search of his pockets for identification was illegal. The State asserts that such a motion would not have been granted because under these circumstances, police were permitted to conduct a patdown of Mr. Rodriguez pursuant to a valid Terry stop. A Terry stop is a brief detention for limited questions when an officer has a reasonable suspicion of criminal activity. State v. Smith, 102 Wn.2d 449, 452, 688 P.2d 146 (1984). When an officer has a reasonable suspicion of criminal activity, he or she may stop a suspect and ask the suspect for identification and an explanation of his or her activities. State v. Madrigal, 65 Wn. App. 279, 282, 827 P.2d 1105 (1992).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Here, the officers had grounds to make a Terry stop. Mr. Rodriguez was possibly guilty of criminal trespass. See RCW 9A.52.080. He had been pounding on the homeowner's door, and was leaning against a boat in the driveway. He appeared under the influence. Given these circumstances, the officers had a reasonable suspicion of criminal activity and were permitted to ask him to provide identification.
Officer Fausti requested identification. Mr. Rodriguez did not provide any identification. The officer testified he then removed Mr. Rodriguez's wallet from his clothing. This was a permissible frisk under Terry, analogous to a limited search into a purse for the sole purpose of obtaining the identity of a suspect, which has been upheld as reasonable. State v. Webster, 20 Wn. App. 128, 136-37, 579 P.2d 985 (1978). The court in Webster stated:
[T] he courts have recognized the problems which confront police officers during a street investigation of suspicious activity, and have upheld their right to conduct a limited search and seizure as a valid intermediate response. The officer's opening of the purse under the circumstances here involved was such a valid intermediate response.
Id. at 137 (citations omitted). As in Webster, Officer Fausti was confronted with a suspicious situation. Mr. Rodriguez was apparently trespassing on another's property. He appeared intoxicated and refused to follow the officer's instructions to identify himself. The officer was permitted to take steps necessary to secure his identification. Because the limited search for identification was reasonable under these circumstances, there was a substantial basis for the trial court to deny the motion to suppress, and thus it was not ineffective assistance for defense counsel to fail to bring such a motion.
The State also argues the officer's actions were permissible under the community caretaking function. The community caretaking function is a separate exception to the warrant requirement. State v. Kinzy, 141 Wn.2d 373, 385, 5 P.3d 668 (2000), cert. denied, 531 U.S. 1104 (2001). This exception allows for a limited invasion of constitutionally protected rights when necessary for officers to render aid or assistance or when making routine checks on health and safety. State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004).
In exercising their community caretaking function, a police officer may request or search for identification from an individual who appears to require immediate aid. State v. Hutchison, 56 Wn. App. 863, 866-67, 785 P.2d 1154 (1990). Officer Fausti testified Mr. Rodriguez appeared to be under the influence. He was moaning and unable to enunciate his words. He did not respond to questions or commands. Thus, under the community caretaking function, the officer was permitted to search for identification.
Because the officer was permitted to conduct a limited search for identification either under the Terry exception to the warrant requirement, or under the community caretaking exception to the warrant requirement, Mr. Rodriguez cannot establish a motion to suppress would have been granted. Thus, he cannot show counsel was ineffective for failing to bring such a motion.
CONCLUSION
The officers had the authority to conduct a minimal search to identify Mr. Rodriguez. Any motion to suppress would probably not have been successful; thus, it was not ineffective for counsel to fail to bring such a motion. We affirm Mr. Rodriguez's convictions. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and BROWN, J. concur.