Opinion
No. 31087-2-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 03-1-01147-2. Judgment or order under review. Date filed: 10/30/2003. Judge signing: Hon. Wm Thomas McPhee.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Jon Gary Betschart appeals his conviction of unlawful possession of a controlled substance, unlawful use of drug paraphernalia, and driving while license suspended or revoked in the third degree. He argues that because his arrest for driving while license suspended was unlawful, his conviction for that offense must be reversed and the evidence supporting his drug convictions suppressed. He also contends that the evidence is insufficient to support the drug convictions. We reverse the driving while license suspended conviction and affirm the drug convictions.
FACTS
On June 14, 2003, Washington State Patrol Troopers Sherry Callahan and John Buma stopped a car Betschart was driving because he was not wearing a seat belt. Mrs. Betschart was in the front passenger's seat. When Callahan asked Betschart for his driver's license, vehicle registration, and proof of insurance, he volunteered that he might have some tickets. Callahan returned to her patrol car and radioed for information concerning Betschart's driver status. When she learned that he had been driving with a suspended license, she arrested him and searched his car.
Callahan found a black eyeglass case under the front passenger's seat that contained drug paraphernalia and arrested Mrs. Betschart. She then found a black case under the driver's seat that contained additional drug paraphernalia and two baggies of heroin. She subsequently saw what appeared to be fresh injection marks on Betschart's arm.
The State charged Betschart with driving while license suspended or revoked in the third degree, unlawful possession of a controlled substance, and unlawful use of drug paraphernalia. After Callahan and Buma testified to the facts cited above, Mrs. Betschart testified for the defense and said she had put the two drug kits in Betschart's car. She admitted that Betschart had used heroin within the year, but she did not recall telling Callahan that he used drugs on the morning of his arrest.
On rebuttal, Callahan testified that Mrs. Betschart said before her arrest that the first drug kit was her husband's and that he had used heroin that morning. After Callahan discovered the second drug kit, she heard Betschart tell his wife that he `couldn't go down for this.' 2 Report of Proceedings (RP) at 214. Mrs. Betschart then told Callahan that she would take the blame.
The defense argued in closing that Betschart's possession of the heroin was unwitting, but the jury found him guilty as charged. Betschart now appeals his convictions.
Discussion I. Conviction for Driving While License Suspended
Betschart contends that his conviction for driving while license suspended or revoked in the third degree must be reversed following the Washington Supreme Court's decision in City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004). In Moore, the court held that driver's license suspensions imposed without the opportunity for a hearing are invalid. 151 Wn.2d at 677. In so holding, it declared unconstitutional the statute authorizing the suspension of a license for failing to comply with a traffic infraction or citation and the statute denying a formal hearing following such a suspension. Moore, 151 Wn.2d at 677 (citing RCW 46.20.289, .324(1)).
Betschart's driver's license was suspended for failure to comply with a traffic citation pursuant to RCW 46.20.289. The State properly concedes that under Moore, the conviction based on that suspension must be reversed.
II. The Search Incident to Arrest
In a related argument, Betschart contends that the drug evidence seized during the warrantless search that followed his arrest should have been suppressed under article I, section 7 of the Washington Constitution because his arrest for driving with a suspended license was unlawful.
Betschart filed a motion to suppress based on a different challenge. This court does not consider alleged errors raised for the first time on appeal unless they constitute manifest errors affecting a constitutional right. See RAP 2.5(a). Suppression issues trigger this exception. See State v. Contreras, 92 Wn. App. 307, 312-14, 966 P.2d 915 (1998). Where the record is sufficiently developed for us to determine whether a motion to suppress would have been granted, we can review a suppression issue raised for the first time on appeal. Contreras, 92 Wn. App. at 314; see also State v. Brown, 132 Wn.2d 529, 580, 940 P.2d 546 (1997) (despite counsel's failure to file suppression motion below, defendant may raise suppression issue on appeal), cert. denied, 523 U.S. 1007 (1998); but see State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (defendant's failure to move to suppress evidence constituted waiver of any error associated with the admission of the evidence). Because the alleged error here is based on a legal argument and not on undeveloped facts, we will address its merits.
Betschart argued unsuccessfully below that the initial stop was unlawful because the seat belt statute, RCW 46.61.688, was unconstitutional. The Washington Supreme Court recently upheld the seat belt statute. State v. Eckblad, 152 Wn.2d 515, 98 P.3d 1184 (2004).
Because we address the merits of this issue, we need not reach Betschart's alternative argument that he received ineffective assistance of counsel when his attorney failed to move to suppress the drug evidence on the basis of an unlawful arrest.
Warrantless searches are per se unreasonable under article I, section 7 of the Washington Constitution unless they fall within one of the few recognized exceptions to the warrant requirement. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999). One such exception is a search incident to arrest. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). Under article I, section 7, a lawful custodial arrest is a constitutionally required prerequisite to any search incident to arrest. Gaddy, 152 Wn.2d at 70. Betschart contends that because his arrest for driving with a suspended license was unlawful, the resulting warrantless search of his car was unlawful as well. See State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982) (affirming suppression of evidence following arrest based on statute that was subsequently declared unconstitutional).
The State responds, however, that resolution of this issue is guided not by White but by Gaddy. In a decision that followed Moore, the Washington Supreme Court upheld the admissibility of evidence seized after the defendant's arrest for driving with a suspended license. See Gaddy, 152 Wn.2d at 74. The court noted that under RCW 10.31.100(3)(e), police officers may arrest a person without a warrant if they have probable cause to believe that the person is driving with a suspended license. Gaddy, 152 Wn.2d at 70. The court found that the
Department of Licensing records stating that Gaddy's license had been suspended were presumptively reliable and provided probable cause for her arrest. Gaddy, 152 Wn.2d at 73-74. This decision appears to compel the result that the trooper's arrest of Betschart was permissible, and the evidence seized pursuant to that arrest admissible, despite the subsequent invalidation of the driving while license suspended statutes in Moore. Unless a statute is flagrantly unconstitutional, a subsequent judicial decision that the statute or ordinance is unconstitutional does not negate the probable cause to arrest under that statute. See White, 97 Wn.2d at 103 (citing Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979)). Here, as evidenced by the fact that four justices dissented in Moore, the driving while license suspended statutes were not flagrantly unconstitutional and provided probable cause for Betschart's arrest.
III. Ineffective Assistance of Counsel
Betschart argues here that his trial counsel was ineffective for failing to argue in a suppression motion that his arrest was unlawful because the trooper declined to exercise her discretion to issue a citation and notice to appear in lieu of making a custodial arrest.
To demonstrate ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficiency was prejudicial. Contreras, 92 Wn. App. at 318. To demonstrate prejudice, the defendant must show that the result of the proceeding would have been different but for counsel's deficient representation. Contreras, 92 Wn. App. at 318. Assuming for the sake of argument that a reasonably competent attorney would have made the suppression motion at issue, the defendant must show that the trial court would have granted the motion to demonstrate ineffective assistance of counsel. State v. Jamison, 105 Wn. App. 572, 590, 20 P.3d 1010, review denied, 144 Wn.2d 1018 (2001).
Betschart's argument is based on RCW 46.64.015, which allows an officer to issue a citation and notice to appear in court instead of making a full custodial arrest for the crime of driving with a suspended or revoked license. See also CrRLJ 2.1(b)(1). An officer who chooses to issue a citation and notice to appear does not have authority to search the vehicle, even if the officer could have chosen instead to make a full custodial arrest. State v. Pulfrey, 120 Wn. App. 270, 275, 86 P.3d 790, review granted, 152 Wn.2d 1021 (2004).
Division One upheld the officer's decision to conduct a custodial arrest in Pulfrey despite his testimony that he always makes a full custodial arrest of persons suspected of driving while their licenses are suspended and always searches their persons and vehicles incident to such arrests. 120 Wn. App. at 271-72. The court rejected Pulfrey's argument that officers must exercise the discretion granted by the Legislature and must decide on a case-by-case basis whether a custodial arrest is justified. Pulfrey, 120 Wn. App. at 283.
Betschart contends that the state supreme court's decision to grant review of Pulfrey indicates that his attorney was ineffective for failing to raise the `exercise of discretion' issue below. There are problems with this contention. First, Division One issued its decision in Pulfrey more than four months after Betschart's trial, and the supreme court granted review almost nine months after that. Counsel cannot be faulted for failing to anticipate a change in the law. In the Matter of the Personal Restraint Petition of Benn, 134 Wn.2d 868, 939, 952 P.2d 116 (1998).
Moreover, it is questionable whether the initial decision in Pulfrey or even a possible reversal is material to Betschart's arrest. Trooper Callahan testified that she realized that driving with a suspended license was an `arrestable' offense, and she never stated that she always arrests persons suspected of driving with a suspended license. 1 RP at 71-72. Betschart fails to show that a motion to suppress based on Callahan's failure to exercise the discretion authorized by RCW 46.64.015 would have been successful, and his ineffective assistance of counsel claim fails.
IV. Sufficiency of the Evidence
Betschart argues that the evidence was insufficient to support his drug convictions where he produced evidence showing that his possession of the heroin and drug paraphernalia was unwitting.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits a jury to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. McKeown, 23 Wn. App. 582, 588, 596 P.2d 1100 (1979). This court must defer to the trier of fact 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).
In its unwitting possession instruction, the court informed the jury that Betschart was not guilty of possession of a controlled substance if he succeeded in proving that he did not know the substance was in his possession. The only witness for the defense was Mrs. Betschart, who testified that she had placed both of the drug kits in Betschart's car. She was not allowed to testify that Betschart did not know the drugs were there. Although Mrs. Betschart initially said the first drug kit was Betschart's, she said after the second kit was discovered and after a conversation with Betschart that she would `take the blame.' 2 RP at 215. The kit containing heroin was found under Betschart's seat, and the State's evidence indicated that he used heroin on the morning of his arrest. The credibility of Mrs. Betschart's testimony was a question for the jury, and the State produced sufficient evidence to prove that Betschart possessed the drug evidence found in his car.
We reverse Betschart's conviction for driving while license suspended or revoked in the third degree and affirm his convictions for possession of a controlled substance and use of drug paraphernalia.
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. and QUINN-BRINTNALL, C.J., concur.
I concur in the result only.