Opinion
No. 36342-9-II.
September 3, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-00291-8, Jay B. Roof, J., entered April 18, 2007.
Delmar Gucene, Jr. appeals his conviction for possession of a controlled substance, methamphetamine contending that the police did not search his vehicle contemporaneously with his arrest and the police exceeded the scope of a lawful search incident to arrest. We affirm his conviction and sentence.
FACTS
On February 13, 2007, Kitsap County Deputy Sheriff Lee Watson responded to a call from the Castles Super Store (Castles) in Silverdale, Washington, because the manager and an employee of Castles suspected that Gucene had stolen some merchandise. Gucene and Marice Sonnier left Castles without purchasing anything, but an alarm sounded as they left. An employee called to Gucene and Sonnier and Sonnier returned to the store, exiting again without the alarm sounding. Gucene did not return and drove away in a blue Chevrolet Camaro. Later that evening, Kitsap County Deputy Sheriff David Meyer saw a blue Camaro, with a license plate matching the one reportedly involved in the theft, and pulled it over. Gucene was driving, Sonnier was in the front passenger seat, and Amber Boyle Booth was in the back passenger seat. Meyer believed Gucene's and Sonnier's physical appearance matched the description of the two men involved in the theft from Castles. Meyer obtained Gucene's license and registration to check for outstanding arrest warrants, but Gucene had none.
Watson and Kitsap County Deputy Sheriff Lee Wheeler then arrived to assist Meyer. The deputies asked the passengers to exit the vehicle and spoke with them individually about their suspected involvement in the Castles theft. Meyer took Gucene between 10 to 20 feet away from the vehicle, where Gucene told him that he had been at Castles and the alarm sounded, but he did not stop when the employee called to him because he was closer to his car than the store. He also denied taking any merchandise from Castles. The deputies arrested Sonnier and Boyle Booth because they both had outstanding arrest warrants.
Meyer told Gucene that he was not free to leave, but he did not arrest him. Gucene remained outside of his vehicle, approximately 10 to 20 feet away, until the deputies arrested him.
Meyer then conducted a search of the Camaro's back seat and front passenger seat compartment incident to Sonnier's and Booth's arrest. Meyer searched through the cluttered back seat and found a plastic bag containing adult novelty items that he thought could have come from Castles. Sonnier told Watson that Gucene had taken those items from Castles.
Meyer drove to Castles, an approximate one-minute drive from where he stopped Gucene's car, and spoke to the manager, who identified the items as belonging to Castles. The manager and Meyer then viewed video surveillance of the alleged theft that showed Sonnier taking a bottle from a shelf and concealing it and Gucene taking an unknown item from a shelf and placing it in his jacket.
Meyer radioed this information to the other deputies, Watson arrested Gucene, placing him in a squad car, and Meyer then returned to the scene. Watson suggested that they call a K-9 unit to search Gucene's vehicle. The K-9 unit arrived soon thereafter and searched the car. The K-9 unit dog alerted the officers to a shower-type bag located on the floor in front of the driver's seat. The bag contained five plastic bags: one had a methamphetamine residue on it and another contained 0.07 grams of crystal methamphetamine.
Meyer testified that they called the K-9 unit because the dog can search more efficiently than humans can search and the K-9 unit was near their location, and Watson testified that they called the K-9 unit because Wheeler informed him that Gucene had a history of illegal drug activity.
Meyer testified that it took only one or two minutes for the K-9 unit to arrive. But Watson testified that it took approximately 15 minutes for the K-9 unit to arrive.
Meyer had seen the bag on the floorboard, but did not seize it until Gucene was arrested and the K-9 unit dog alerted the officers to it.
The State charged Gucene with possession of a controlled substance, methamphetamine. Gucene unsuccessfully moved to suppress the methamphetamine evidence because the trial court ruled that the use of a K-9 unit to search Gucene's vehicle incident to his arrest was not prohibited and the search was contemporaneous with the arrest.
After a stipulated facts trial, the trial court convicted Gucene of possession of a controlled substance, methamphetamine. It sentenced him to a standard range sentence of 16 months incarceration.
Gucene appeals.
ANALYSIS
Gucene argues that the trial court should have suppressed the drug evidence found in his vehicle following the CrR 3.6 hearing.
CrR 3.6 provides:
(a) Pleadings. Motions to suppress physical, oral or identification evidence, other than motion pursuant to rule 3.5, shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion. Opposing counsel may be ordered to serve and file a memorandum of authorities in opposition to the motion. The court shall determine whether an evidentiary hearing is required based upon the moving papers. If the court determines that no evidentiary hearing is required, the court shall enter a written order setting forth its reasons.
(b) Hearing. If an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law.
I. Standard of Review
We review a trial court's conclusion of law at a suppression hearing de novo and its findings of fact for substantial evidence. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004); State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). Unchallenged findings are verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). And the trial court's findings must support the conclusions of law. Vickers, 148 Wn.2d at 116.
Here, the record does not contain findings of fact or conclusions of law, as required by CrR 3.6(b), nor did the trial court make any oral findings on the record. But it did enter an informal memorandum opinion. "Failure to enter findings and conclusions is error, but it is harmless if the trial court's oral findings are sufficient to permit appellate review." State v. Smith, ___ Wn.2d ___, 187 P.3d 768, 771 (2008); see also State v. Head, 136 Wn.2d 619, 622, 964 P.2d 1187 (1998) (memorandum opinion, although written, is only an "oral expression[ ] of the court's informal opinion"); State v. Radka, 120 Wn. App. 43, 47-48, 83 P.3d 1038 (2004).
Gucene did not assign error to the trial court's failure to enter findings and conclusions and he alleges only legal errors by the trial court. Because our review of conclusions of law is de novo and the failure to enter findings and conclusions appears to be harmless, we analyze the lawfulness of the deputies' search on the existing record.
II. No Unreasonable Delay
Gucene argues the search was not contemporaneous to his arrest because of the delay between when Meyer initially seized him and when the K-9 unit searched his vehicle.
The Fourth Amendment of the United States Constitution provides that people have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." And article I, section 7 of the Washington State Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." "Under article I, section 7, warrantless searches are per se unreasonable," but "[t]here are exceptions to the warrant requirement [and] the State bears the burden of showing a warrantless search falls within one of these exceptions." State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307 (2005). "Exceptions to the warrant requirement fall into several broad categories: consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry investigative stops." State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968).
(1999). "When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed." Ladson, 138 Wn.2d at 359.
A search incident to arrest is valid "(1) if the object searched was within the arrestee's control when he or she was arrested; and (2) if the events occurring after the arrest but before the search did not render the search unreasonable." State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992). Under the second prong, the search incident to arrest must occur approximately contemporaneously with the arrest. State v. Fladebo, 113 Wn.2d 388, 395-97, 779 P.2d 707 (1989). While the police may conduct a contemporaneous warrantless search shortly after they have removed the arrestee from the immediate area, the police should not separate the arrest and search by an unreasonable amount of time or by unreasonable intervening acts. See Smith, 119 Wn.2d at 683-84; State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986).
Gucene argues that the elapsed time from his initial seizure until the deputies searched his vehicle was unreasonable. But "it is a lawful custodial arrest, and only that full lawful custodial arrest, that gives police the authority to search incident to an arrest." State v. Quinlivan, 142 Wn. App. 960, 966, 176 P.3d 605 (2008) (citing State v. O'Neill, 148 Wn.2d 564, 584-85, 62 P.3d 489 (2003)). Here, Gucene does not contend that the elapsed time from his custodial arrest to the K-9 unit search was unreasonable, only that the elapsed time between his initial detention to the search incident to this arrest was unreasonable. And the record illustrates that a maximum of fifteen minutes passed between the time the deputies arrested Gucene and their K-9 unit search. This was reasonable. See Smith, 119 Wn.2d at 683-84. Furthermore, in this case, all of the police actions contributing to the delay of a search of the entire passenger compartment were reasonable. As the trial court recognized:
Assuming the entire stop and arrival at the jail took one and a half hours, this was not unreasonable given there were three people being arrested and the investigation of the theft required one officer to leave the scene to obtain further information for an arrest. Further, the arrest took place in Silverdale and part of the hour and a half was transport time to Port Orchard.
Clerk's Papers at 18. We agree with the trial court. Given the complexity of the stop, any delay of the officers' search of the entire passenger compartment was not caused by unnecessarily time-consuming activities unrelated to lawful investigatory procedures and securing the scene; therefore, the elapsed time was reasonable and the search was contemporaneous with Gucene's actual arrest. See Smith, 119 Wn.2d at 677, 683-84 (delay of 17 minutes from arrest to search reasonable when officer was dealing with a large crowd and an arrestee who ran from the officer, was picking up beer bottles from an elementary school parking lot, and was consulting with other officers); State v. Moore, 129 Wn. App. 870, 887-88, 120 P.3d 635 (2005), review denied, 157 Wn.2d 1007 (2006) (police may briefly detain an individual for investigatory purposes when police have reasonable suspicion, grounded in specific and articulable facts, that the detainee has been involved in a crime).
III. K-9 Unit Search and Inevitable Discovery
Gucene next argues that the search incident to his arrest exceeded the scope of a lawful search because using a K-9 unit expanded the search and the officers had no reason to suspect that drugs were involved in the offense. Gucene argues that the facts of this case are comparable to those in State v. Valdez, 137 Wn. App. 280, 152 P.3d 1048 (2007), review granted, 163 Wn.2d 1010 (2008). In Valdez, we held that the trial court should have suppressed the drug evidence police found by using a K-9 unit in a second search of the vehicle because the police did not have probable cause to believe drugs were present and they had already searched the vehicle once. 137 Wn. App. at 288-89. Gucene contends that his case is similar to Valdez because the police conducted a second search of the entire vehicle after they searched a portion of the passenger compartment and they lacked probable cause to suspect that drugs were present. But we hold that the K-9 unit search here conducted the first search incident to Gucene's arrest. Furthermore, as the State suggests, the police would have inevitably discovered the drugs by conducting a lawful search incident to Gucene's arrest without the K-9 unit.
We recognize the doctrine of inevitable discovery as an exception to the exclusionary rule. State v. Richman, 85 Wn. App. 568, 578, 933 P.2d 1088 (1997). Under the inevitable discovery doctrine, we will permit the admission of illegally obtained evidence "if the State can prove by a preponderance of the evidence that the police did not act unreasonably or in an attempt to accelerate discovery, and the evidence would have been inevitably discovered under proper and predictable investigatory procedures." State v. Avila-Avina, 99 Wn. App. 9, 17, 991 P.2d 720 (2000); see also Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed.2d 377 (1984); O'Neill, 148 Wn.2d at 591-92; Richman, 85 Wn. App. at 572. And, if one prong of the test is dispositive, we do not consider the other prong. Avila-Avina, 99 Wn. App. at 17.
The officers arrested Gucene for third degree theft based on adequate probable cause.
During the arrest process, including the timeimmediately subsequent to the suspect's beingarrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passengercompartment of a vehicle for weapons or destructibleevidence. However, if the officers encounter a lockedcontainer or locked glove compartment, they may notunlock and search either container without obtaining awarrant.
Stroud, 106 Wn.2d at 152; see also State v. Johnson, 128 Wn.2d 431, 455, 909 P.2d 293 (1996) ("Persons traveling on public highways have lessened privacy interests because of the government's interest in ensuring safe and efficient transportation."). Thus, even without the K-9 unit, when deputies conducted a search incident to Gucene's arrest, they would have inevitably found the shower bag containing the methamphetamine because it was located on the floor in front of the driver's seat. Because deputies may open unlocked containers to search for weapons or destructible evidence, they would have found the methamphetamine in the shower bag. See Stroud, 106 Wn.2d at 152; Avila-Avina, 99 Wn. App. at 17. The trial court did not err when it refused to suppress the seized evidence.
Because the second prong of the inevitable discovery test is met, we do not determine whether the police acted unreasonably or in an attempt to accelerate discovery. See Avila-Avina, 99 Wn. App. at 17.
We affirm Gucene's conviction and sentence.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.