Opinion
No. 33445-3-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-01936-4, Frederick W. Fleming, J., entered June 17, 2005.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, Tacoma, WA.
Counsel for Respondent(s), Michael Lee Sommerfeld, Pierce County Prosecutors Office, Tacoma, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Penoyar, JJ.
Steven Anthony Haggard appeals his convictions of unlawful possession of methamphetamine with intent to deliver. He argues, for the first time on appeal, that the search of the vehicle he was driving at the time of his arrest was unlawful. He also argues that his trial counsel was ineffective for failing to move to suppress the evidence found during the search. Because Haggard failed to challenge the search below and the record is not adequate for review, we affirm.
Haggard was also convicted of attempting to elude a pursuing police vehicle, but he does not challenge that conviction on appeal.
FACTS
After the police arrested Haggard for attempting to flee a pursuing police vehicle, they searched the vehicle he had been driving and discovered drugs and a gun. The State charged Haggard with unlawful possession of methamphetamine with intent to deliver while armed with a firearm, first degree unlawful possession of a firearm, and attempting to elude a pursuing police vehicle. Haggard pleaded not guilty and, prior to trial, brought a CrR 3.5 motion to suppress statements he made to the police following his arrest. He did not move to suppress the evidence the police found in the vehicle.
At the CrR 3.5 hearing and during trial the officers who arrested Haggard testified that at approximately 1:00 a.m. on April 16, 2004, they were conducting surveillance of a residence when they were advised that a suspect, later identified as Haggard, was leaving the residence in a vehicle. Believing Haggard was potentially a murder suspect, the officers activated their patrol car's lights and sirens and followed him. Driving with his headlights off and at speeds well in excess of the posted speed limits, Haggard attempted to elude the officers. He eventually came to an abrupt stop in the middle of the road and attempted to flee on foot.
Because Haggard did not move to suppress the evidence, we look to the entire record to determine whether there was any evidence introduced that would establish that a suppression motion would have likely succeeded had it been brought.
Officer Patrick O'Neill pursued Haggard into the backyard of a nearby house and eventually arrested him. Although there was some testimony regarding how far Haggard and Officer O'Neill were from the vehicle and the house at various times during the pursuit, it is not clear from the record exactly how far they were from the vehicle when Officer O'Neill arrested Haggard.
At one point during the CrR 3.5 hearing, Haggard testified:
I probably ran about 20 feet and I threw my arms up in the air and I was thinking to myself why am I running? The reason I did run, I was scared. I just got out of prison. I didn't know what was going on. I did know the officers were looking for, you know, a murder suspect whom I did not know.
1 Report of Proceedings (RP) (April 25, 2005) at 64. But it was unclear from this testimony whether Officer O'Neill arrested Haggard at that point or whether Haggard was just commenting on what he was thinking during the pursuit. Also during the CrR 3.5 hearing, Officer O'Neill testified that the house was approximately 100 feet from the vehicle Haggard had been driving. But, again, this testimony was not specific about what part of the house was 100 feet from the vehicle or where in relation to the vehicle or house the arrest occurred.
As Officer O'Neill followed Haggard, Officer Mark Rodrigues remained behind and did a cursory search of the vehicle Haggard had been driving to ensure no one else was inside it. Once he determined no one else was in the car, he joined Officer O'Neill in the backyard.
The officers testified that Officer O'Neill advised Haggard of his Miranda rights while they were in the backyard and that Haggard waived those rights and agreed to speak to them. When Officer Rodrigues took Haggard back to the patrol car, Officer O'Neill remained behind to search the backyard to ensure Haggard had not thrown anything down during the chase.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Some time after placing Haggard in the patrol car, the officers searched the vehicle Haggard had been driving. Using a flashlight, Officer Rodrigues found a black nylon zippered case on the floorboard behind the driver's seat. He removed the case from the vehicle and opened it to discover drugs and related materials. Leaning his upper body into the vehicle, Officer O'Neill found a handgun on the floorboards partially concealed under the driver's seat.
At some point after the arrest, Officer Rodrigues asked Haggard why he had fled. Haggard told him that he ran because he was scared and that he had been at the house the officers were watching to "deliver a large or substantial amount of methamphetamine" as part of a plan to set up another man to be arrested by the police. 1 Report of Proceedings (April 25, 2005) at 50. Officer Rodrigues also testified that after they had discovered the drugs and gun he asked Haggard about them. Haggard admitted that he knew there were drugs in the vehicle but he asserted the drugs were not his and denied any knowledge of the gun. Officer Rodrigues stated that he also asked Haggard whether he had attempted to flee because of the drugs and gun in the car but that Haggard did not say anything at that point.
After booking Haggard at the jail, the officers inventoried the items they had seized from the vehicle and placed them in the property room. The record does not show whether they impounded and subsequently inventoried the vehicle.
Haggard denied being advised of his Miranda rights, waiving his Miranda rights, making the statements the officers reported, or knowing that the drugs or gun were in the vehicle. He also testified that the vehicle belonged to his sister.
Finding the officers' CrR 3.5 testimony credible, the trial court denied the CrR 3.5 motion and admitted Haggard's statements to the officers. The jury convicted Haggard of attempting to elude a pursuing police vehicle and possession of a controlled substance with intent to deliver, but it did not find that he was armed at the time of the drug offense. The trial court declared a mistrial on the unlawful possession of a firearm charge. Haggard appeals.
ANALYSIS
Haggard contends, for the first time on appeal, that the evidence the officers found during their search of the vehicle should have been suppressed because the search was not a lawful search incident to arrest. He also contends that his trial counsel was ineffective for failing to challenge the search on this basis.
A warrantless search is per se unreasonable under the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington State Constitution unless it falls within one or more of several specific exceptions to the warrant requirement. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996) (citing State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984)). A search incident to arrest is one such exception. Johnson, 128 Wn.2d at 447 (citing State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986)). A search incident to arrest is valid only if (1) the object searched was within the arrestee's control immediately prior to, or at the moment of, arrest; and (2) the events occurring after the arrest but before the search did not render the search unreasonable. State v. Smith, 119 Wn.2d 675, 681-82, 835 P.2d 1025 (1992) (applying New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). In the context of a vehicle search incident to arrest, the so-called "automobile exception" to the warrant requirement, the vehicle is the object searched; thus, it must have been within the arrestee's control immediately prior to or at the moment of arrest. State v. Rathbun, 124 Wn. App. 372, 376-80, 101 P.3d 119 (2004) (suppressing evidence from a truck where defendant was arrested 40 to 60 feet from the vehicle and record did not show that defendant had occupied the vehicle) (citing Thornton v. United States, 541 U.S. 615, 622, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (search of vehicle incident to arrest proper following arrest of occupant or "recent occupant" of vehicle, but recognizing that whether a person was a "recent occupant" "may turn on his temporal or spatial relationship to the car at the time of the arrest and search"); Belton, 453 U.S. at 460 (expanding search incident to arrest exception to allow for a search of the vehicle's passenger compartment when defendant occupied vehicle at time of arrest); Stroud, 106 Wn.2d at 153 (search of passenger compartment of vehicle following lawful arrest proper under the Washington State Constitution where defendants were arrested "next to their car while the door was still open" and the car's engine was still running); State v. Johnston, 107 Wn. App. 280, 285-86, 28 P.3d 775 (2001) (holding that the "key question" in applying Belton and Stroud is "whether the arrestee had ready access to the passenger compartment at the time of arrest."); and State v. Porter, 102 Wn. App. 327, 332-34, 6 P.3d 1245 (2000) (search of vehicle improper when police arrested the occupant of the vehicle after he had moved 300 feet away from the vehicle)).
It is undisputed, however, that Haggard did not move to suppress this evidence below. Although we generally do not consider issues raised for the first time on appeal, we will if the alleged error 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). Thus, the claimed error must not only be truly of constitutional magnitude, it must be "manifest." McFarland, 127 Wn.2d at 333.
To show that the alleged error was manifest, Haggard must demonstrate "how, in the context of the trial, the alleged error actually affected [his] rights," in other words that his trial counsel's failure to challenge the search was prejudicial. McFarland, 127 Wn.2d at 333 (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). "If 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)). Haggard argues that the record is sufficient to review the suppression issue. We disagree.
Although the record shows that Haggard was some distance away from the vehicle when Officer O'Neill actually arrested him and this could arguably support Haggard's assertion that the search was not a valid search incident to arrest, Haggard's failure to litigate this issue precluded the State from establishing other justifications for the search. Because these issues were not raised, we cannot tell from the record whether Haggard may have consented to the search at some point; whether he may have lost any expectation of privacy in the vehicle by abandoning it in the middle of the street; or whether the officers inventoried the vehicle following Haggard's arrest, thus leading to an inevitable discovery of the challenged evidence. Because the facts necessary to adjudicate these issues are not sufficiently clear from the record, the error is not manifest, and we decline to consider this issue for the first time on appeal.
Haggard also argues that his trial counsel was ineffective for not challenging the search. To establish ineffective assistance of counsel, Haggard must show that (1) his trial 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). As discussed above, the inadequacy of the trial record prevents Haggard from establishing prejudice, and Haggard cannot show his counsel's performance was ineffective. Accordingly, 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.
BRIDGEWATER, P.J. and PENOYAR, J., concur.