Opinion
No. 36995-8-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-00754-4, Sally F. Olsen, J., entered November 16, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Hunt and Quinn-Brintnall, JJ.
William Lee Valley appeals his conviction for one count of possession of a controlled substance in violation of RCW 69.50.206(d)(2) and RCW 69.50.4013. He contends for the first time on appeal that, because the arresting officer lacked probable cause to arrest him, the methamphetamine later discovered in his pants pocket was inadmissible. Accordingly, he also contends that the State's evidence was insufficient to support his conviction and that his trial counsel provided ineffective assistance by failing to move to suppress the allegedly inadmissible evidence. He asks us to vacate his conviction and dismiss or remand the case for a new trial. In his statement of additional grounds for review (SAG), Valley challenges the booking officer's testimony about where the methamphetamine was discovered. We affirm.
RAP 10.10(a).
FACTS
While looking for an address to serve process in an unrelated civil proceeding, Kitsap County Deputy Sheriff James Gastineau parked his vehicle in a residential driveway in Port Orchard. As he parked, he noticed a truck parked alongside the same house. When Gastineau exited his vehicle and approached the truck, the driver of the truck, Valley, exited his vehicle.
Gastineau asked Valley who he was and what he was doing. Valley responded that he was removing glass from aluminum window frames and asked if he was going to be arrested. Valley showed Gastineau two aluminum window frames and a nearby pile of broken glass at the side of the house. Valley also showed Gastineau another window frame in the back of his truck, explaining that he brought the aluminum frames to the house to remove the glass and salvage them.
Near the back of the truck, Gastineau saw a blue plastic tote sitting on the ground that held, among other items, an unopened box containing a new kitchen faucet. Valley explained that the tote and its contents belonged to him and that he intended to place them in a storage unit. Gastineau also noticed that two of the house's windows were open, and he saw what appeared to be a bed headboard leaning against the house under one of the open windows.
Valley admitted that he did not know the owner of the property or the residents of the house but stated that he had heard from a friend that the property was abandoned and that he could work on the window frames there. Gastineau called for a backup patrol unit and placed Valley in handcuffs.
Kitsap County Deputy Sheriff Andrew Ejde responded to Gastineau's request for backup. When he arrived, Ejde advised Valley of his Miranda rights. Gastineau then entered the house and "observed on the kitchen counter two brand new . . . faucets"; one faucet was identical to the one in Valley's tote. Clerk's Papers (CP) at 5. Valley admitted taking the faucet but said that he found it on the porch. Gastineau also discovered a section of downspout and two elbow drains, that matched the ones on the house in color, near the pile of broken glass. The downspout and elbow drains were crushed and appeared to have been removed from a corner of the house. Valley denied removing the downspout from the house, stating that he had brought it with him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Later, while searching Valley at the Kitsap County jail's booking area, Deputy Sheriff William Lewis discovered a plastic baggie containing a substance that later proved to be methamphetamine. The State charged Valley with possession of methamphetamine. On October 30, 2007, a jury found Valley guilty as charged. The trial court sentenced Valley within the standard range to 18 months of confinement and 9 to 12 months of community custody.
Valley appeals.
ANALYSIS
I. Probable Cause
For the first time on appeal, Valley contends that Gastineau lacked probable cause to arrest him. Valley argues that the facts known to "Gastineau at the time he arrested [] Valley . . . do not support a reasonable inference that [] Valley was engaged in any crime." Br. of Appellant at 6-7.
Generally, we do not consider an issue raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); see State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). The exception for consideration of constitutional errors for the first time on appeal was explained in State v. McFarland:
[C]onstitutional errors are treated specially under RAP 2.5(a) because they often result in serious injustice to the accused and may adversely affect public perceptions of the fairness and integrity of judicial proceedings. On the other hand, "permitting every possible constitutional error to be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources of prosecutors, public defenders and courts."
127 Wn.2d 322, 333, 899 P.2d 1251 (1995) 127 Wn.2d at 333 (quoting State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992)) (citation omitted).
"Whether RAP 2.5(a)(3) applies is based on a two-part test: (1) whether the alleged error is truly constitutional and (2) whether the alleged error is 'manifest.'" State v. Ridgley, 141 Wn. App. 771, 779, 174 P.3d 105 (2007) (internal quotation marks omitted) (quoting State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007)). "'An error is manifest when it has practical and identifiable consequences in the trial of the case.'" Ridgley, 141 Wn. App. at 779 (quoting State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001)); see also McFarland, 127 Wn.2d at 333 ("The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights."). When a claim of constitutional error for failure to suppress evidence is raised for the first time on appeal because no motion to suppress was made at the trial court, the party raising the issue must show that the trial court would have likely granted the suppression motion had it been made. McFarland, 127 Wn.2d at 333-34.
Here, we do not review this issue for the first time on appeal under RAP 2.5(a). But we resolve Valley's "predicament," by addressing the issue under his claim of ineffective assistance of counsel. State v. Contreras, 92 Wn. App. 307, 317, 966 P.2d 915 (1998) (quoting McFarland, 127 Wn.2d at 334 n. 2).
The exceptions defined by RAP 2.5 do not give a party an absolute right to appellate review of an issue raised for the first time on appeal. RAP 2.5 (a). The rule states only that a "party may raise" such an issue for the first time on appeal. The rule does not guarantee that the appellate court will decide the issue.
2A Karl B. Tegland, Washington Practice: Rules Practice RAP 2.5 author's cmts. at 193 (6th ed. 2004).
II. Insufficient Evidence and Ineffective Assistance of Counsel
Valley also asserts that the admissible evidence was insufficient to support his conviction for possession of methamphetamine and that his counsel was ineffective for failing to move to suppress the methamphetamine seized at the jail because his arrest was not based on probable cause and was, therefore, illegal, rendering the subsequently discovered evidence inadmissible. Valley's claims of ineffective assistance of counsel and insufficiency of the State's evidence rest solely on his argument that Gastineau lacked probable cause to arrest him, making "the evidence found during the search of [] Valley when he was booked . . . tainted and not admissible." Br. of Appellant at 7.
A. Failure To Move To Suppress Based on Lack of Probable Cause
Article 1, section 22 of the Washington State Constitution and the Sixth Amendment, as applied to the states through the Fourteenth Amendment, entitle a defendant to the effective assistance of counsel. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004). To demonstrate ineffective assistance of counsel, Valley must satisfy a two-part test that
U.S. Const. amend. VI.
U.S. Const. amend. XIV.
"(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances[] and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." 2004).
Davis, 152 Wn.2d at 672-73 (quoting McFarland, 127 Wn.2d at 334-35). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." Davis, 152 Wn.2d at 673.
"Where the alleged constitutional error arises from trial counsel's failure to move to suppress [evidence], the defendant 'must show the trial court likely would have granted the motion if made [and] actual prejudice must appear in the record.'" Contreras, 92 Wn. App. at 312 (quoting McFarland, 127 Wn.2d at 334).
"As a general rule, warrantless searches and seizures are per se unreasonable." State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). We recognize certain exceptions to the warrant requirement, but they are "'jealously and carefully drawn.'" State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002) (internal quotation marks omitted) (quoting Williams, 102 Wn.2d at 736). An exception to the warrant requirement exists where an officer has probable cause to arrest. See State v. Todd, 78 Wn.2d 362, 365, 474 P.2d 542 (1970). And RCW 10.31.100 states, in pertinent part, that
[a] police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer.
See also State v. Walker, 157 Wn.2d 307, 314, 138 P.3d 113 (2006) ("The legislature, under its police powers, may grant police officers authority to arrest for certain crimes subject to public policy and constitutional limitations."). "Probable cause exists when the arresting officer is aware of facts and circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed." State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006).
Valley's counsel was confronted with the following evidence: When Gastineau "detained Valley for further investigation," Valley was on private residential property and admitted that he did not know the owners or residents of the property. CP at 5. Initially, Valley asked Gastineau if he was going to be arrested. Then, Valley showed Gastineau "two aluminum windows on the ground and one in the back of [Valley's] truck." CP at 4. Gastineau observed a pile of broken glass on the ground near the window frames and noticed that two of the residence's windows were open and a headboard was leaning against the house under one of them. Furthermore, although Valley said he was only on the property to break glass out of the window frames, he initially failed to explain why his tote contained an unopened box that contained a faucet identical to a faucet found inside the house.
Valley asserts that "the only possible crimes which [] Gastineau could have believed [] Valley had committed would be first or second degree trespass," and that the facts did not support an inference of either, because it is a defense to criminal trespass if a building is abandoned, the premises were open to the public, or the actor reasonably believed that the owner would have licensed him to enter. Br. of Appellant at 5; see RCW 9A.52.090(1), (2), (3). Essentially, Valley's argument is that, because he told Gastineau that he thought the property was abandoned and that his friend told him that he could use the property to salvage the window frames, Gastineau did not have probable cause to arrest him for trespass.
But trespass was not the only crime Gastineau could have believed was in progress. RCW 9A.56.020(1)(a) states that "[t]heft" means "[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services." Whether the crime of theft is a gross misdemeanor or a felony depends on the value of the property in question. See ch. 9A.56 RCW. And RCW 10.31.100 allows a police officer to arrest a person without a warrant for committing a misdemeanor or gross misdemeanor in the officer's presence. Here, Valley was not charged with theft and the record does not address the origin of the window frames or resolve whether Valley removed the frames from the house.
But the question is whether a reasonable police officer, under these facts and circumstances, would believe that Valley was in the act of committing theft of both the window frames and the items in the tote. Valley admitted that he found the unopened kitchen faucet box on the property and that he was in the process of removing it from the property when confronted by Gastineau. Gastineau's statement of probable cause shows that his observations were "sufficient to cause a reasonable officer to believe" that Valley was in the process of wrongfully obtaining the aluminum window frames and items in the tote from the property and intended to deprive the rightful owner of those items. Potter, 156 Wn.2d at 840; RCW 10.31.100.
We hold that these facts support Gastineau's reasonable belief that Valley was in the process of committing a theft at the house. Thus, Gastineau had probable cause to arrest Valley without a warrant, and Valley's challenge to his arrest for lack of probable cause would have failed if raised in the trial court.
Thus, the error was not "manifest" for the purposes of RAP 2.5(a). McFarland, 127 Wn.2d at 333.
Furthermore, Valley's counsel had a reasonable tactical basis for not raising the issue — to do so may have exposed Valley to additional misdemeanor or felony charges for theft. See State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) ("If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel."). Thus, his ineffective assistance of counsel claim on this ground fails, and we determine that Valley cannot show that he was prejudiced based on his counsel's failure to bring an unsuccessful motion to suppress based on lack of probable cause.
B. Failure to Move to Suppress Methamphetamine
The evidence showed that Valley possessed methamphetamine deputies located while booking him at the jail following his arrest by Gastineau. Thus, any motion to suppress the methamphetamine evidence seized at the jail based on an arrest without probable cause would have been unsuccessful. Valley cannot show that the result of the proceedings would have differed had his counsel made an unsuccessful motion to suppress the methamphetamine, and his claims of ineffective assistance of counsel and insufficient evidence both fail.
III. Credibility Challenge
In his SAG, Valley asserts that "[i]t states in the report [that] the [b]aggie of meth[amphetamine] was found in [my] pocket. But it was found on the floor. Officer Lewis picked it up off the floor[,] not out of [my] pocket." SAG at 1. Apparently, Valley refers to the report of proceedings and questions Lewis's credibility about how he turned the right front pocket of Valley's pants inside out and saw the plastic baggie containing the methamphetamine fall out of Valley's pocket and onto the floor. But "[c]redibility determinations are for the trier of fact and are not subject to review." State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008).
Therefore, we decline to review or consider this issue.
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.
Van Deren, C.J.
I concur:
Hunt, J.
I concur in the result only:
Quinn-Brintnall, J.