Opinion
No. 53487-4-I.
February 22, 2005.
Appeal from Superior Court of Whatcom County. Docket No. 03-1-00495-5. Judgment or order under review. Date filed: 11/25/2003. Judge signing: Hon. Steven J Mura.
Counsel for Appellant(s), William Joseph Johnston, Attorney at Law, 401 Central Ave, Bellingham, WA 98225-4466.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Craig D. Chambers, Attorney at Law, Whatcom Co Prosecutor, 311 Grand Ave Fl 5 Bellingham, WA 98225-4048.
The opinion in the above captioned case will not be published in the Washington Appellate Reports pursuant to an order of the Court of Appeals dated July 15, 2005 withdrawing the opinion, substituting a new opinion, and denying further reconsideration. Now published at 128 Wn. App. 398.
An unlawful entry by police does not invalidate a subsequent search warrant so long as the unlawful entry did not prompt the decision to seek the warrant and the lawfully obtained evidence before the magistrate established probable cause to search. Because the officers' decision to seek a warrant in this case was not prompted by their entry into Frank Spring's motel room, and because lawfully obtained evidence established probable cause to search the room, we affirm Spring's conviction for manufacturing methamphetamine.
Suppression Hearing Facts
On April 10, 2003, housekeepers at a motel in Ferndale discovered what appeared to be an active methamphetamine lab in one of the rooms. The room was full of smoke and had a strong chemical odor. The maids observed tubes, acetone, packages of Sudafed, and a propane torch in the room. The head housekeeper reported these observations to the police.
When police arrived, they were told the room was rented to a man named Frank Spring. A pickup truck was parked near the room, and its license number matched the license number on the room rental receipt. A man was standing next to the truck. As police approached him, the man was extremely nervous, his hands and feet were constantly moving, he could not maintain eye contact, and his eyes were blinking rapidly. The officers proceeded to question Spring, and ultimately handcuffed him, but did not read his Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Witnesses disagreed as to the order of the questions and the point during questioning when Spring was handcuffed. According to Spring, police asked his name and then asked him to stick out his tongue. They then asked him when he had last `used' and Spring said `last night.' The officers then handcuffed him before resuming questioning.
Report of Proceedings (RP) (Sept. 30, 2003) at 102.
According to Sergeant Kevin Hester's incident report, Spring was handcuffed after identifying himself and sticking out his tongue. Spring then admitted renting a room, stated that someone else was currently inside `cooking meth,' and consented to a search of the room. Hester testified that his report was not in chronological order, and that Spring was handcuffed `some time' during the initial conversation with police. Detective Bryan Collins recalled a different sequence of questions and testified that Spring was not handcuffed until the questioning was complete.
Clerk's Papers at 105.
RP (Sept. 30, 2003) at 78.
After obtaining Spring's consent to search, the officers approached the room. They could smell `chemical odors' even before they entered. Once inside, they confirmed the presence of a methamphetamine lab and found a man, later identified as Kyle Lisneski, in the bathroom wearing a fire retardant suit. They then secured the room. The search took approximately 10 seconds.
RP (Sept. 30, 2003) at 75.
The officers returned to Spring, read him his rights, and questioned him further. Spring claimed he rented the room for a man he had just met named Kyle. He admitted entering the room on that morning and seeing Kyle cooking methamphetamine. He also admitted purchasing Sudafed tablets and driving Kyle to several stores. The officers searched Spring and obtained his consent to search his truck. They later sought a telephonic warrant to search the motel room, informing the magistrate of the maids' and the officers' observations. Relying in part on the results of the consent search, the magistrate found probable cause to issue the warrant to search the room. Based on the results of the searches of Spring's room and truck, Spring was charged with manufacturing methamphetamine.
Prior to trial, Spring moved to suppress his statements and the evidence taken from both his room and his truck. The court ruled that the consent search of the room was unlawful because Spring gave consent after he was handcuffed and before Miranda warnings. Although the court agreed the search warrant was tainted to the extent it was based on information obtained in the consent search, the court concluded that the untainted evidence before the magistrate was sufficient by itself to support probable cause, and that the warrant and second search were therefore valid.
The court found that Spring was not handcuffed until after he gave his name, stuck out his tongue, admitted renting the room and using methamphetamine, and admitted that someone was manufacturing methamphetamine in the room. The court admitted those statements, but suppressed all of the statements Spring made after his handcuffing, including his consent to search and his admissions following the search. A jury convicted Spring as charged.
DECISION
The principal issue before us is whether the superior court erred in denying Spring's motion to suppress evidence discovered during the execution of the search warrant. Spring contends the search warrant and the search of his room were invalid under the United States Supreme Court's decision in United States v. Murray.
We review the trial court's findings of fact for substantial evidence and its conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988).
In Murray, federal agents surveilling a warehouse saw two trucks leave the warehouse. The trucks were seized and found to contain marijuana. Agents then entered the warehouse illegally and discovered marijuana inside. The agents then applied for a search warrant for the warehouse, but did not mention the illegal entry or any observations they made inside the warehouse. Addressing the validity of the warrant, the court stated:
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.
Id. at 542 (footnote omitted).
Murray thus set forth two separate inquiries for determining whether the warrant was tainted by illegally obtained information: the officer's decision to seek the warrant, and the magistrate's decision to issue it. Because the trial court's findings had addressed only the magistrate's decision, the Supreme Court remanded for findings as to whether `the agents would have sought a warrant if they had not earlier entered the warehouse.' Spring contends that Murray requires suppression in this case because both the decision to seek and the decision to issue the warrant were based in part on unlawfully obtained evidence.
Id. at 543.
As to the magistrate's decision to issue the warrant, the Washington Supreme Court held in State v. Maxwell that when a search warrant is based in part on illegally obtained information, the warrant is valid if the warrant application contains `otherwise sufficient facts to establish probable cause independent of the illegally obtained information.' The Maxwell holding derives from Franks v. Delaware, a pre-Murray decision in which the United States Supreme Court held that a warrant containing false information was valid so long as the remaining information established probable cause.
114 Wn.2d 761, 769, 791 P.2d 223 (1990).
438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
Maxwell, 114 Wn.2d at 769 (citing State v. Coates, 107 Wn.2d 882, 888, 735 P.2d 64 (1987) (relying on Franks)).
The question, therefore, is whether Murray altered the principles applied in Franks and Maxwell. The vast majority of courts addressing this question have concluded that Murray does not depart from the holding in Franks. The reasoning in State v. Chaney is representative:
United States v. Jenkins, F.3d, 2005 WL 180963, *4-5 (6th Cir. (Ohio) Jan. 28, 2005) (No. 03-3989) (federal circuits considering the issue unanimously agree that Murray does not alter Franks); Williams v. State, 372 Md. 386, 813 A.2d 231 (2002) (citing federal and state cases); People v. Weiss, 20 Cal. 4th 1073, 86 Cal. Rptr. 2d 337, 978 P.2d 1257, 1261-63 (1999) (same).
318 N.J. Super. 217, 723 A.2d 132 (1999).
If viewed in isolation from the rest of the Court's opinion and prior case law, the [`affected his decision to issue the warrant'] passage from Murray could be read to support the trial court's decision. However, this part of Murray is dictum because the warrant affidavit involved in that case did not set forth the police officers' observations during an earlier warrantless entry into the searched premises. Thus, it was clear in Murray that an earlier unlawful search did not affect the judge's decision to issue the warrant, and the Court had no occasion to consider whether the warrant would have been invalid if the supporting affidavit had included unlawfully obtained information. Moreover, the Court in Murray did not even mention . . . Franks or the line of lower court decisions which have held that a search warrant issued on the basis of an affidavit containing unlawfully obtained information may be valid if the affidavit also contains other lawfully obtained information which establishes the probable cause required for the search. Consequently, it seems unlikely that the Court in Murray intended to change this well established law.
In addition, just two sentences before the passage in Murray relied upon by the trial court, the Court stated that `while the government should not profit from its illegal activity, neither should it be placed in a worse position than it otherwise would have occupied.' If the inclusion in a warrant affidavit of unlawfully obtained information automatically required suppression of the evidence obtained in a search under the warrant even though other untainted information in the affidavit established probable cause, the government clearly would be placed in a `worse position' than if it had not engaged in a prior unlawful search. Therefore, the trial court's expansive reading of the dictum in Murray is inconsistent with the overall tenor of the opinion and with prior case law.
Id. at 135-36 (emphasis added) (citations omitted).
This reading of Murray is supported by the rationale of Murray itself, and by the fact that Murray does not mention or purport to overrule Franks. We are persuaded that the majority view is correct, and apply the principles in Franks and Maxwell to the warrant issued in this case.
Under those cases, the search warrant was valid if the lawfully obtained evidence in the warrant application supported probable cause to search. It did. The housekeepers' observations during their lawful entry, the officers' observations of Spring, and Spring's initial statements to police together provided ample probable cause to search Spring's room. Issuance of the warrant was proper.
The maids were named citizen informants and are presumed reliable. State v. Wible, 113 Wn. App. 18, 24, 51 P.3d 830 (2002).
This does not end our inquiry, however. Murray also requires the State to demonstrate that the officers' decision to seek the warrant was not prompted by the unlawful search. Courts generally have required the government to show that officers would have sought the warrant even in the absence of the unlawfully obtained evidence. Often, the result on appeal has been a remand for entry of findings on this point. In this case, however, a remand is unnecessary because the evidence clearly demonstrates that the officers would have sought the warrant even in the absence of the unlawful entry.
Murray, 487 U.S. at 542.
State v. Hall, 53 Wn. App. 296, 766 P.2d 512 (1989); United States v. Hill, 55 F.3d 479, 481 (9th Cir. 1995) (court must explicitly find that officers would have sought a warrant if they had not earlier entered defendant's house) (quoting Murray, 487 U.S. at 543).
See United States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992); United States v. Bosse, 898 F.2d 113, 116 (9th Cir. 1990) (remanding to determine effect of illegal entry and search on officers' decision to seek warrant); State v. Winkler, 552 N.W.2d 347, 354 (N.D. 1996) (remanding to trial court on the question of motivation).
The supervisor of the investigation, Sergeant Hester, testified that his initial inclination following the report from the motel was to get more information (i.e., what the employee had seen in the motel room, who had rented the room, and what they were driving). The plan was `to go speak with the employee of the motel and ascertain further what she had seen and then attempt to apply for a search warrant for the room based on what she had seen and what her observations were.' The plan changed when officers discovered Spring in the parking lot. At that point, an exigency existed, and Hester decided to contact Spring. After speaking with Spring, the exigency increased because it appeared there was an active and potentially volatile lab in the room. The officers then decided to enter the room, and `did a quick sweep to check for other people and then exited the room.' They were inside for 10 seconds.
RP (Sept. 30, 2003) at 64 (emphasis added).
Hester testified that the exigency increased because there was `possibly an active lab going on here which needs to be controlled before it gets to a stage where it could become explosive and/or violent as far as fire, explosion, and that type of thing.' Id. at 70.
RP (Sept. 30, 2003) at 20.
Reasonable minds could reach only one conclusion on this record: the officers intended to obtain a warrant as soon as they spoke with the maids, and the initial entry was a response to exigencies, not an effort to gather additional evidence. The decision to seek the warrant, therefore, was not prompted by the unlawful search.
Spring also contends that the Franks test for determining the validity of a warrant does not adequately protect his privacy rights under the Washington Constitution. Reviewing courts generally will not consider a state constitutional argument in the absence of analysis of the factors identified in State v. Gunwall. Spring's counsel on appeal does not discuss Gunwall or provide any meaningful analysis in his briefs. Although Spring mentions Gunwall in his pro se statement of additional grounds for review, his treatment of the issue is inadequate. We decline to address his argument under the Washington Constitution on this briefing.
106 Wn.2d 54, 61-62, 720 P.2d 808 (1986); see also State v. Clark, 68 Wn. App. 592, 601, 844 P.2d 1029 (1993), aff'd, 124 Wn.2d 90 (1994) (absent adequate Gunwall analysis, court will not consider argument that state constitution provided more protection against omissions in search warrant affidavits than that provided by Fourth Amendment as interpreted in Franks).
We note that the essence of Spring's argument that the trial court's `redaction approach' fails to adequately protect privacy interests under the state constitution was rejected in State v. Ludvik, 40 Wn. App. 257, 263-64, 698 P.2d 1064 (1985). This court subsequently relied on Ludvik in State v. Richman, 85 Wn. App. 568, 575-78, 933 P.2d 1088 (1997), holding that the inevitable discovery rule is consistent with article I, section 7 of the Washington Constitution. We noted that there was `no principled difference between the inevitable discovery rule and the independent source doctrine.' Richman, 85 Wn. App. at 576. Division Three recently cited Richman and Ludvik for the proposition that `the independent source doctrine, like the inevitable discovery doctrine, does not offend the protections of article 1, section 7.' State v. Smith, 113 Wn. App. 846, 856, 55 P.3d 686 (2002) (citing Richman, 85 Wn. App. at 576-77; Ludvik, 40 Wn. App. at 263), review denied 149 Wn.2d 1014 (2003). Spring fails to address any of these cases.
Affirmed.
The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.
Trial Facts
At trial, the State presented circumstantial evidence of Spring's knowledge of the methamphetamine lab. Motel records showed that he rented the room on April 9 and 10. The records included a photocopy of his driver's license. A motel employee identified Spring as the man who rented the room on April 10, shortly after the police were called.
Darla Manroe, a maid employed by the motel, testified that on the morning of April 10 she observed two men leave Spring's room and drive off in a pickup truck. She then entered the room, which was filled with smoke and the implements of a meth lab. After showing the room to the head maid, she called the police. Before the police arrived, Manroe saw the pickup return. One of the men came to the office for more towels and rented the room for another night. Manroe later saw the same man taking things from the motel room to the truck.
Motel employee Raymond Tiffany was staying in the room next to Spring's on the evening of April 9. He heard two male voices and `things banging around' in Spring's room during the night. In the morning, he opened a connecting door between the rooms and noticed that towels had been laid between the floor and the bottom of the doors in Spring's room.
RP (Nov. 10, 2003) at 17.
Trooper Roger Hansberry identified photographs of Spring's room showing blister packs of pseudoephedrine and a Mountain Dew bottle.
Detective Collins identified two pipes found in Spring's pants. Collins testified that these pipes were a type commonly used for drug ingestion. Collins testified that the registration slip for Spring's room listed a license number that, with the exception of one missing number, matched the license number on the pickup truck seen by various witnesses in the vicinity of the room. Collins identified a receipt from Cost Cutter that was found in Spring's jacket pocket. Other testimony established that the receipt was for Mountain Dew purchased at 11:30 a.m. on April 10. Collins also identified a bag of pseudoephedrine tablets and a receipt found in Spring's truck, but those exhibits were not admitted.
Officer Doug Mather of the Ferndale Police Department testified that he searched the man found in Spring's room, Kyle Lisneski. He found receipts for pseudoephedrine purchases at the Ferndale Cost Cutter and Ferndale Drug. Other testimony established that the Cost Cutter receipt was for a purchase made at 11:39 a.m. on April 10. The Ferndale Drug receipt evidenced a purchase made at 11:54 a.m. the same day.
Spring's mother, Carol Spring, testified that Spring lived with her and that he slept at her home on the evening of April 9. Spring did not testify.
In closing, defense counsel argued that there was insufficient evidence to show that Spring had the requisite knowledge for accomplice liability. Counsel focused on Spring's statement that methamphetamine was being cooked in his room, arguing there was a reasonable doubt as to whether Spring made the statement. The jury convicted Spring as charged.
Truck Search
Spring contends his written consent to search his truck was invalid because it was the product of the unlawful search of his motel room and his arrest on less than probable cause. This contention is not persuasive. In determining whether evidence obtained following illegal police conduct must be excluded, the primary consideration is whether police obtained the evidence by exploiting the illegality, or whether the means of obtaining the evidence were sufficiently distinguishable from the illegality to purge the primary taint. When, as in this case, the issue is the validity of consent given following illegal police conduct, factors to consider include (1) the temporal proximity of the illegal conduct and subsequent consent, (2) the presence of significant intervening circumstances, (3) the purpose and flagrancy of the official's conduct, and (4) the giving of Miranda warnings. On balance, these factors weigh in favor of finding Spring's consent valid.
It appears from the record that the superior court never expressly ruled on this motion.
Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Gonzales, 46 Wn. App. 388, 398, 731 P.2d 1101 (1986).
State v. Armenta, 134 Wn.2d 1, 17, 948 P.2d 1280 (1997); Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Gonzales, 46 Wn. App. at 398.
The first two factors weigh against valid consent since the truck search occurred shortly after the unlawful search of the room and there were no significant intervening circumstances. But the third and fourth factors weigh heavily in favor of finding the consent valid. The official misconduct in this case was not flagrant. Contrary to Spring's assertions, the police had ample evidence to support an arrest before they handcuffed him. And while the initial entry was unlawful, it was extremely limited in scope and was motivated by legitimate safety concerns. The fourth factor is satisfied because Spring received Miranda warnings prior to consenting to the truck search. Significantly, his consent was given in writing with the understanding that it could be refused or withdrawn at any time. In short, the police did not exploit any prior illegality when they obtained Spring's consent to search his truck. Because that search was valid, Spring's motion to suppress was properly denied.
Clerk's Papers at 110.
Even assuming the truck search was unlawful, any error was harmless beyond a reasonable doubt. The only evidence obtained from the truck was a paper bag containing two boxes of Sudafed and a receipt from Walgreens. A Walgreens employee identified the boxes and receipt and said the receipt showed the purchase was made at 7:00 a.m. on April 10. Detective Collins later identified the bag and its contents and testified that they came from Spring's truck. But when the State moved to admit the exhibit, the court sustained a defense objection based on chain of custody. Because the exhibit was not admitted, no physical evidence recovered from the truck was before the jury.
A constitutional error is harmless if the appellate court concludes beyond a reasonable doubt that a reasonable jury would have reached the same result in the absence of the error. State v. Young, 62 Wn. App. 895, 904, 817 P.2d 412 (1991) (citing State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985)).
While there was some testimony relating to the exhibit, juries are typically instructed to disregard any evidence that either was not admitted or that was stricken by the court. We are unable to determine whether that instruction was given in this case because the jury instructions are not part of the record on appeal. It was Spring's burden to provide this court with an adequate record to review his arguments on appeal. His failure to provide a sufficient record is fatal to his challenge to the truck search.
11 Washington Pattern Jury Instructions: Criminal 1.01, at 4 (2d ed. 1994).
RAP 9.6(b); State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986).
Findings/Admission of Statements/Harmless Error
Finally, Spring contends that portions of the court's suppression findings are not supported by substantial evidence. Specifically, he contends there is no support for the court's finding that he was not handcuffed when he told police he had rented the room and that others were `cooking meth' in the room. We disagree. By all accounts, the handcuffing did not occur until Spring had answered several questions. Spring himself testified that he answered three questions before he was handcuffed. Detective Collins testified that his first three questions included asking Spring if he had rented the room and what was going on inside it. Thus, there is substantial evidence supporting the court's finding that Spring was not handcuffed when he admitted that he rented the room and that others were cooking methamphetamine inside it.
Furthermore, any error in admitting Spring's statements was harmless beyond a reasonable doubt. Although defense counsel argued below that the statement about cooking methamphetamine was critical to the State's case and was the only evidence demonstrating the knowledge required for accomplice liability, that argument distorts the record. As noted above, the State presented a wealth of circumstantial evidence indicating that Spring was aware of, and assisted in, the manufacturing operation. On this record, no reasonable jury would have come to a different conclusion in the absence of the challenged statement.
When statements obtained in violation of Miranda are erroneously admitted, reversal is not required if the error was harmless beyond a reasonable doubt. State v. Reuben, 62 Wn. App. 620, 626-27, 814 P.2d 1177 (1991) (citing Arizona v. Fulminante, 499 U.S. 279, 292, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
Affirmed.
KENNEDY and APPELWICK, JJ., Concur.