Opinion
No. 30389-2-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 02-1-01374-8. Judgment or order under review. Date filed: 05/07/2003. Judge signing: Hon. James E Warme.
Counsel for Appellant(s), Robert W. Jr Huffhines, Attorney at Law, 206 N Pacific Ave, Kelso, WA 98626-3414.
Counsel for Respondent(s), Megan Ellavsky, Hall of Justice, 312 SW 1st Ave, Kelso, WA 98626-1739.
Robert Marvin White appeals his conviction for second-degree unlawful firearm possession. He argues the trial court erred in denying his motion to suppress the weapon, seized during an illegal search. Holding the search and seizure lawful, we affirm.
FACTS I. Traffic Stop; Arrest; Search and Seizure
Shortly after 5:00 a.m. on October 26, 2002, Longview Police Officer Carl Carlson observed a vehicle turn a corner without signaling. William Rowton was the driver and the defendant, Robert Marvin White, was the passenger. Before Carlson could perform a traffic stop, Rowton pulled over to the side of the road, and he and White exited the vehicle. Carlson parked his car behind Rowton's car and asked Rowton and White if he could speak to them.
When asked if he had a driver's license, Rowton responded that he had only an identification card. A records check revealed that Rowton was driving with a suspended license. Carlson arrested Rowton.
Longview Police Reserve Officer Joseph Gillespie searched the vehicle and found a .22 caliber pistol under the front passenger seat. Carlson then arrested White, who at that point was approximately five feet from Rowton's vehicle. The State charged White, a convicted felon, with second-degree unlawful possession of a firearm.
II. Motion to Suppress the Seized Firearm
White moved to suppress the gun. Carlson, Gillespie, and White testified at the hearing on the motion. Carlson testified that (1) although Rowton and White appeared to be trying to cross the street, they were `still by the car' when he contacted them; (2) as Rowton and White walked toward Carlson, they were `[b]asically in the area of the car' and were closer to Rowton's car than Carlson's; and (3) Rowton's car was unlocked. Report of Proceedings (RP) at 9-11.
White testified that (1) he and Rowton were walking up the stairs of a friend's apartment when Carlson first contacted them; (2) the passenger-side door of Rowton's car was locked; (3) he could not be completely sure that the driver's side door was locked; and (4) the officers needed a key to enter the driver's side of the car. RP at 15-16.
Gillespie testified on rebuttal that (1) he needed the keys to enter through the passenger's side of Rowton's car; (2) he did not get in through the driver's side of the vehicle; and (3) Rowton was only five or six feet from his vehicle when arrested. RP at 18-19.
In its oral ruling denying the motion to suppress, the trial court found that (1) Rowton was within five feet of his car when the officers arrested him; and (2) the driver's side door was unlocked. The court concluded that the search was permissible because Rowton had reasonably immediate access to the vehicle.
III. Trial
The case was tried to the court on the following pertinent stipulated facts:
1. On October 26, 2002 at approximately 5:22 a.m., Longview Police Officer [Carl] Carlson, and reserve office Gillespie were on duty in Longview, Cowlitz County, Washington and observed a red vehicle that failed to signal when it made a turn onto Maryland Street.
2. Before Officer Carlson could activate his lights to initiate a stop, the vehicle pulled over to the right side of the road, and the driver and his passenger exited the vehicle. Officer Carlson pulled over to the side of the road, exited his patrol vehicle, and asked the subjects if he could talk to them. The subjects agreed, and met up with the officers next to the red vehicle they had just exited.
3. Officer Carlson asked the driver, William Rowton, if he had a license. Rowton told him that he did not. Officer Carlson then ran a records check and discovered Rowton's license was suspended. Rowton was arrested.
4. Officer Carlson then informed the Defendant, White, that the officers were going to search the vehicle incident to arrest, and asked him if they would find anything in the vehicle. White said there was a .22 calib[er] pistol on the floor, by the passenger's front seat.
5. Officer Gillespie searched the vehicle, and located a black Jennings semi-automatic .22 caliber pistol on the floor, under the front right edge of the front passenger seat. The weapon was secured and taken for evidence. Officer Carlson then read Defendant his rights pursuant to Miranda. Defendant stated that he understood his rights and that he would answer questions.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
Clerk's Papers (CP) at 20.
The trial court convicted White as charged and entered the stipulated facts, written findings of fact, and conclusions of law. White appeals.
ANALYSIS I. Standard of Review
We review the trial court's denial of a suppression motion by determining whether substantial evidence supports its findings of fact and then, whether the findings support the trial court's conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise. In re Welfare of Snyder, 85 Wn.2d 182, 185-86, 532 P.2d 278 (1975). We review the trial court's conclusions of law de novo. Mendez, 137 Wn.2d at 214.
II. The Search
Neither party disputes that Rowton was lawfully arrested. Rather, the issue is whether the scope of the permissible search incident to his arrest included the passenger compartment of the car that he had been driving before his arrest.
In Chimel v. California, the Supreme Court held that incident to a lawful arrest, the police may search the `area into which the arrestee might reach to grab a weapon or destroy evidence.' In New York v. Belton, the Court articulated the `bright-line rule' that incident to the arrest of a vehicle's occupants, the police may search the vehicle's passenger compartment. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
State v. Johnston, 107 Wn. App. 280, 285, 28 P.3d 775 (2001) (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)), review denied, 145 Wn.2d 1021 (2002).
As the State concedes, the rules governing the scope of a search are less clear when the arrestee was not occupying the vehicle at the time of his arrest. In State v. Stroud, the defendants were standing next to their car with the door open and the engine running when they were arrested. Stroud, 106 Wn.2d 144, 153, 720 P.2d 436 (1986). Applying Belton, our Supreme Court permitted the search of the passenger compartment but limited the search to unlocked containers. Stroud, 106 Wn.2d at 152.
In State v. Johnston, we considered Chimel, Belton, and Stroud. In Johnston, we noted that the key question when applying Belton and Stroud is whether the arrestee had ready access to the passenger compartment at the time of the arrest. If he could suddenly reach or lunge into the compartment for a weapon or evidence, the police may search the compartment incident to his arrest. If he could not do that, the police may not search the compartment incident to his arrest. Sometimes, this is referred to as having `immediate control' of the compartment. Johnston, 107 Wn. App. 280, 285-86, 28 P.3d 775 (2001), review denied, 145 Wn.2d 1021 (2002).
Here, the trial court applied essentially the same test, citing Stroud's so-called `bright-line' rule. The trial court noted that for the search incident to arrest to be lawful, the arrestee must have had `reasonably immediate access' to the passenger compartment of the vehicle to be searched. We hold that the record supports the trial court's findings of fact, which in turn support its conclusion of law that Rowton had the access necessary to make the vehicle search permissible incident to Rowton's arrest.
The trial court did not enter separate findings of fact and conclusions of law on the motion to suppress as required by CrR 3.6. Rather, it entered the findings and conclusions based on the parties' stipulation following the suppression hearing, which stipulated facts then served as the basis for the bench trial on the issue of White's guilt.
White, however, does not challenge the trial court's failure to enter separate findings and conclusions on his suppression motion. And the record on the trial court's oral ruling denying White's suppression motion provides a sufficient basis for reviewing the trial court's denial of the motion. Thus, any potential error arising from the lack of written findings and conclusions specific to the suppression hearing is harmless. See, e.g., State v. Johnson, 75 Wn. App. 692, 698 n. 3, 879 P.2d 984 (1994), review denied, 126 Wn.2d 1004 (1995).
Consistent with Carlson's testimony that Rowton and White were `[b]asically in the area of the car,' Gillespie testified that Rowton was five or six feet from his vehicle when he was arrested. RP at 19. Carlson testified that the car was unlocked. Although White testified that the driver's side door was locked, we defer to the trial court's determination on witnesses' credibility and its finding that the passenger side door was unlocked. See, e.g., State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Being only five feet away from the unlocked car door gave Rowton sufficient `ready access' to the passenger compartment and the pistol under the passenger seat as contemplated in both Stroud and Johnston. Moreover, for purposes of the bench trial, White stipulated that he and Rowton were `next to the red vehicle.' App. Br. at 5. Factual stipulations are generally binding on the parties and the court. Ross v. State Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 523, 940 P.2d 252 (1997). "When a case is submitted to the trial court upon stipulated facts, neither party will be heard to suggest on appeal that the facts were other than as stipulated. Relief from a stipulation may be had only in the trial court." Thus, White cannot now challenge the stipulated and found fact that he and Rowton were next to Rowton's car when Officer Carlson arrested him.
See, e.g., State v. Bradley, 105 Wn. App. 30, 33, 40-41, 18 P.3d 602, amended on denial of reconsideration, 27 P.3d 613 (2001) (applying Stroud, court permitted search incident to arrest when defendant was 10 to 12 feet away from the vehicle with its door ajar). But cf. State v. Perea, 85 Wn. App. 339, 344, 932 P.2d 1258 (1997) (rejecting lawfulness of search incident to arrest when defendant had not remained inside of or next to his locked vehicle).
Med. Consultants Northwest, Inc. v. State, 89 Wn. App. 39, 44, 947 P.2d 784 (1997) (quoting State ex rel. Carroll v. Gatter, 43 Wn.2d 153, 155, 260 P.2d 360 (1953)), review denied, 136 Wn.2d 1002 (1998).
Affirmed.
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.
MORGAN, J., QUINN-BRINTNALL, C.J., concur.