Opinion
No. 33568-9-II.
June 27, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-05460-7, Bryan E. Chushcoff, J., entered July 20, 2005.
Counsel for Appellant(s), Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA 98070-2711.
Counsel for Respondent(s), Michelle Hyer, Pierce County Prosecutor, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Hunt, JJ.
Larry Eugene Morgan appeals his conviction of unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. He claims that the police lacked probable cause to arrest him and that the State failed to prove that he had the requisite intent. Additionally, pro se, Morgan claims ineffective assistance of trial counsel. We affirm.
FACTS
On November 23, 2004, a Pierce County Sheriff's Office special investigations unit set up surveillance at the Tacoma Target store. Detective Oliver Hickman was in the Target security office observing the cold remedies aisle. Using the store cameras, he observed a man, later identified as Morgan, take two boxes of cold medicine off the shelf, pay for them, and then get in the passenger side of a Ford Taurus in the parking lot. A few minutes later, Hickman saw another man, later identified as Richard Dugan, take two boxes of cold medicine off the shelf, pay for them, and then get in the driver's side of the same car.
Other members of the investigations unit followed the Taurus while Hickman obtained copies of the receipts showing that Morgan and Dugan had purchased products containing pseudoephedrine. Dugan drove north on Union Avenue to 6th Avenue, where he turned east, traveling to Warner Street, where he turned south. He then made a u-turn, went back to 6th Avenue, and turned westbound, following 6th Avenue to Stevens Street, where he stopped at a Walgreens store. Morgan then went into the store, purchased a package of cold medicine, and returned to Dugan's car. Deputy Kory Shaffer had followed Morgan into the store, observed the transaction, and confirmed with the store clerk that Morgan had purchased one 48-count package of Walgreens' brand cold medicine.
The investigations unit again followed Dugan as he left Walgreens. Dugan went west on 6th Avenue, north on Rochester Street, back out to 6th Avenue and Mildred Street, then east to Pearl Street, where he went south to Regents Boulevard, followed it Center Street and then stopped at Lowe's. Morgan and Dugan both got out of the car and entered the store. Detective James Loeffelholz followed Dugan into the store and observed him in the paint department looking at chemicals. After leaving the store and reentering it, Dugan purchased a gallon can of xylene, placed it into the trunk of his car, and waited. About 25 minutes later, Morgan came out of the store, took the keys from Dugan, and placed a one gallon container of muriatic acid in the trunk.
Morgan later explained that it took him about one-half hour to find Dugan because he was unfamiliar with the store, was unaware of the contractor's entrance that Dugan had used, and left the store out the front entrance and wandered around the parking lot looking for Dugan.
The investigations unit then followed Dugan as he entered Highway 16 eastbound, took the Union Avenue exit, and then reentered Highway 16 westbound. Dugan stayed on Highway 16 until the Purdy exit, where he paralleled Highway 16 into Kitsap County where Deputy Clark, the only special investigations unit member in a marked police vehicle, stopped him. Deputy Clark handcuffed the two men and Detective Loeffelholz took Morgan aside and read him the Miranda warnings. After Morgan indicated that he understood his rights, Loeffelholz asked about the purchases at Target, Walgreens, and Lowe's. Morgan denied being at any of these stores.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On December 6, 2004, authorized by a search warrant, Detective Hickman searched Dugan's car. From the passenger compartment and backseat, he seized an empty blister pack, 2 cellular phones, lithium batteries, a notebook, a drug pipe and a smoking device, a baggie of marijuana, MSN, and several prescriptions and an inhaler in Morgan's name. From the trunk, he seized one gallon of muriatic acid, one gallon of xylene, a 4-pack of lithium batteries, a receipt, and a container of Red Devil Lye. Finally, inside the driver's door panel, he found a baggie of pseudoephedrine pills. Tami Kee, a forensic scientist with the Washington State Patrol Crime Lab, later explained that the smoking device contained traces of methamphetamine, that the baggie contained approximately 420 pills, and that there was enough pseudoephedrine to manufacture 12 grams of methamphetamine.
MSN is a dietary supplement commonly used to `cut' methamphetamine. Report of Proceedings at 304-05.
The State charged Dugan and Morgan with unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. After the trial court denied motions to suppress, Dugan pleaded guilty.
A violation of RCW 69.50.440(1).
At the suppression hearing, Detective Loeffelholz explained why the special investigations unit focused on Dugan and Morgan. He explained that when two men, shopping separately, purchase cold medicine, without buying anything else, and then get into the same vehicle, it made them suspicious. This method of purchasing separately allows them to get more pills than one person could because state law limits a buyer to three packages a day and some stores, like Target, allow only two packages per person per day.
When the officers followed Dugan and observed erratic driving, he said this was a common `heat check,' a way for the driver to see if anyone is following them. II Report of Proceedings (RP) at 40. Typical heat checks, he explained, involve indirect driving and zigzagging routes.
When Dugan next went to Walgreens and there Morgan bought more cold medicine, the officers suspected that Dugan and Morgan were on a `pill run,' which is a way of obtaining large quantities of pseudoephedrine by stopping at multiple stores to avoid the three package limit. II RP at 44-45. Dugan again followed an indirect route when he drove to Lowe's. And there, again, both men separated, purchased precursor chemicals, placed them in the trunk of the car, and then drove eastbound before going westbound to Purdy. Usually the special investigations unit will follow the suspects to their destination in hopes of finding an existing methamphetamine laboratory but because they were unfamiliar with the roads in Kitsap County, they stopped Dugan before he reached his destination.
The court denied the motions to suppress, reasoning that these officers, who had experience with over 100 such investigations, had probable cause to arrest at the time they stopped the vehicle. After Morgan filed his opening brief, the court entered written findings of fact and conclusions of law. The court concluded as follows:
1. Morgan's motion to suppress all evidence obtained after the vehicle was stopped by Deputy Clark is denied. The Terry stop of Morgan was lawful because Detective Loeffelholz had a reasonable suspicion that Morgan was engaging in criminal activity. Given Detective Loeffelholz['s] training and experience, the behavior of Morgan and Dugan, including the manner in which they obtained pseudoephedrine at the Target and Walgreens store, the manner in which they obtained other ingredients at the Lowe's store that are commonly used to manufacture methamphetamine, and their attempts to evade police surveillance support a reasonable suspicion that Morgan possessed pseudoephedrine with intent to manufacture methamphetamine.
2. Morgan's motion to suppress all evidence obtained after the moment of arrest for lack of probable cause is denied. The arrest of Morgan was supported by probable cause because there was sufficient evidence, given Detective Loeffelholz['s] training and experience, to support a reasonable belief that Morgan was possessing pseudoephedrine with intent to manufacture methamphetamine due to the manner in which he and Dugan obtained pseudoephedrine at the Target and Walgreens store, the manner in which he and Dugan obtained other ingredients at the Lowe's store that are commonly used to manufacture methamphetamine, and their attempts to evade police surveillance. Therefore, the arrest was lawful.
Morgan complains that he cannot assign error to the findings of fact because the State failed in its duty to procure such findings. After Morgan filed his brief, the findings of fact and conclusions of law were filed. Nothing in the record before us suggests that these findings were tailored in the State's favor and Morgan did not take the opportunity to file a reply brief in which he could have made such an assertion. The lack of findings did not prejudice Morgan's ability to make his claims on appeal. Thus, we find no prejudicial error. See State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
Dugan testified on Morgan's behalf at trial. He explained that he was giving Morgan a ride to Kitsap County that day because Morgan had a motor home there that he needed to work on. He acknowledged that they both bought cold medicine at Target but he explained that he asked Morgan to get it for his girl friend, who had an allergy problem and was addicted to it. He said that his intent was to get the pills for someone who was going to make methamphetamine for him but he did not tell this to Morgan. He also explained that Morgan needed muriatic acid to clean the floor of the garage where he was working on his motor home.
Morgan also testified. He explained that Dugan asked him to get the pseudoephedrine for his addicted girl friend and he got exactly what state law allowed: two at Target and one at Walgreens. He also explained that he needed the muriatic acid to clean the garage floor, that he has severe medical problems and uses the MSN for his health, and that he takes 10 different medications every day and does not take methamphetamine. He acknowledged knowing that Dugan used methamphetamine.
The jury found Morgan guilty and he appeals.
ANALYSISProbable Cause To Arrest
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 or is being committed. State v. Greene, 97 Wn. App. 473, 477, 983 P.2d 1190 (1999); State v. Mance, 82 Wn. App. 539, 541, 918 P.2d 527 (1996). The officer need not have evidence proving each element of the crime beyond reasonable doubt. State v. Knighten, 109 Wn.2d 896, 903, 748 P.2d 1118 (1988); see also State v. Terrovona, 105 Wn.2d 632, 643-44, 716 P.2d 295 (1986). Instead, the facts and circumstances must point to the probability of criminal activity. State v. Seagull, 95 Wn.2d 898, 906, 632 P.2d 44 (1981); Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Probable cause is an objective inquiry. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996).
The State argues that we should follow State v. Fore, 56 Wn. App. 339, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011 (1990). There, the State charged Fore with unlawful possession of marijuana with intent to manufacture or deliver. The trial court suppressed evidence seized incident to arrest, reasoning that because the officer was unable to positively identify the substance exchanged in the transaction, he lacked probable cause for the arrest. The reviewing court disagreed, holding that under the circumstances of the case, probable cause to arrest Fore existed and that the search was constitutionally valid. In so holding, the court considered that the officers observed three exchanges of plastic bags containing brownish or greenish matter for currency. These unobscured observations were with high-powered binoculars. The officer also observed Fore take a large plastic bag from underneath the dashboard of his vehicle and remove smaller plastic packets containing a greenish material. The officer had special training in narcotics investigation and surveillance techniques and had made numerous undercover purchases of controlled substances. The officer also knew there had been numerous complaints about drug transactions taking place in the vicinity.
These facts and circumstances, viewed in light of the officer's expertise and experiences, were sufficient, the court held, to warrant a person of reasonable caution to believe that an offense had been committed. Fore, 56 Wn. App. at 344. The court also noted that probable cause is not negated merely because it is possible to imagine an innocent explanation for observed activities. Fore, 56 Wn. App. at 344.
Morgan cites State v. Blair, 65 Wn. App. 64, 827 P.2d 356 (1992), arguing that although the officers may have legitimately stopped Dugan's vehicle, they had to determine if Morgan had a legitimate reason for purchasing legitimate products before they could reasonably conclude that he had committed an offense.
In Blair, the Seattle Housing Authority had an agreement with the Seattle Police Department authorizing police to warn and arrest anyone trespassing on the Housing Authority's property. An officer saw Blair engaging in a drug transaction and told him not to return to the housing project. A few weeks later, the officer saw Blair at the same housing project. He was neither loitering nor otherwise exhibiting behavior that might have led the officer to believe that he had no legitimate reason to be there. Blair, 65 Wn. App. at 69. The officer ordered him into the patrol car, where Blair told the officer he was at the housing project to get his hair braided by one of the residents. Without determining whether he was in fact legitimately at the housing project, the officer arrested him.
Division One held that the officer's earlier direction that Blair not return to the premises was not in itself probable cause. Rather, it created an articulable suspicion that Blair was trespassing. And because the officer failed to confirm that suspicion by determining whether Blair was on the property for a legitimate reason, there was no probable cause to believe that he was trespassing. Blair, 65 Wn. App. at 70.
The present case is more similar to Fore than to Blair. Here, Detective Loeffelholz and several of the officers had extensive experience and training in precursor investigations. The officers made eyewitness observations about Morgan's and Dugan's activities in what appeared to be a `pill run,' confirmed that he had purchased pseudoephedrine, and confirmed that the chemicals purchased were commonly used in the methamphetamine manufacturing process. Further, Morgan and Dugan went into Target separately, purchased only cold tablets, and returned to the vehicle. This behavior, according to Detectives Loeffelholz and Hickman, was typical behavior when suspects are on a `pill run' because their only interest is in obtaining the cold tablets and not in shopping. The officers also followed Dugan as he drove in a manner indicative of `heat checks.' These facts and circumstances were sufficient to cause a person of reasonable caution to believe that Morgan possessed pseudoephedrine with intent to manufacture methamphetamine. Therefore, the officers had probable cause to arrest Dugan and Morgan and were acting lawfully when they detained them.
Detective Hickman testified that either Morgan or Dugan also purchased a tin of Altoids.
Sufficiency of the Evidence
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because we leave credibility determinations to the fact finder and do not review them on appeal, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the fact finder on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Morgan contends that the State's evidence proved possession of pseudoephedrine but it did not prove that he intended to manufacture methamphetamine either as a principal or as an accomplice. He argues that he was unaware of the criminal activity taking place, he believed Dugan's explanation for asking him to get the medicine, he was willing to do so because Dugan was doing him a favor by driving him to Kitsap County, his fingerprints were not recovered from anything in the car, and he was cooperative with the police and did not appear to be under the influence of any substance. Further, he did not know that Dugan also bought cold tablets at Target, he did not know that Dugan had removed the tablets from the blister packs and secreted them in his car door, and he engaged in only lawful behavior.
But taking the evidence and all reasonable inferences from it in favor of the verdict, there was sufficient evidence of intent to support the jury's verdict. First, Dugan admitted that he was gathering pseudoephedrine and chemicals for someone who was going to manufacture methamphetamine for him. Second, Morgan knew that Dugan used methamphetamine. Third, when first asked, Morgan denied that he had been at Target, Walgreens, and Lowe's. This alone suggests guilty knowledge. State v. Couet, 71 Wn.2d 773, 776, 430 P.2d 974 (1967). Fourth, during the search of Dugan's vehicle, Detective Hickman seized a box containing Morgan's prescriptions, a bottle of MSN, a glass smoking pipe containing methamphetamine, and a lithium battery. Fifth, Detectives Hickman and Daryl Purviance and the forensic scientist all testified that muriatic acid is used in the final stages of the manufacturing process. It follows from this evidence, coupled with the shopping and driving behavior, that Morgan was aware of and knowingly obtained precursor elements to be used in manufacturing methamphetamine. That Morgan testified otherwise only raises a credibility challenge, which, as we noted above, is not reviewable on appeal.
Statement of Additional Grounds, RAP 10.10
Pro se, Morgan claims that he was denied his right to effective assistance of counsel in that counsel (1) failed to provide adequate case law at the suppression hearing, (2) failed to omit two jurors that he wanted omitted, (3) provided inadequate jury instructions, (4) failed to debate or confirm issues throughout the trial, and (5) failed to address the lack of evidence of guilt during trial and in closing arguments.
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
None of Morgan's claims overcomes the presumption that counsel provided adequate representation. He shows neither deficient performance nor resulting prejudice. We have reviewed the suppression hearing above and concluded that the trial court ruled correctly. Providing citations to legal authorities would not have changed the result. Nothing in the record shows that the jury as selected was unfair. Nothing in the record shows that the jury instructions were improper. Morgan does not identify any particular issues that counsel could have but did not raise. And the record does not support his claim that counsel failed to argue for his innocence.
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, J. and HUNT, J., concur.