Opinion
No. 56252-5-I.
June 26, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14300-1, Michael Hayden, J., entered May 11, 2005.
Counsel for Appellant(s), Christopher Gibson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Counsel for Respondent(s), Michael Paul Mohandeson, King Co Pros Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Affirmed by unpublished opinion per Cox, J., concurred in by Coleman and Grosse, JJ.
A Terry stop is justified if a police officer is able to point to specific and articulable facts that, when taken together with rational inferences from those facts, reasonably warrant the stop. A Terry stop may be extended under the narrowly drawn circumstances of the community caretaking function. In the proper exercise of the community caretaking function, a police officer may request and/or search for identification of an individual who appears to require immediate aid. Here, Matthew Griffin argues that the trial court should have suppressed the evidence found in his backpack while a police officer was looking for his identification. Because the initial stop was reasonable under the circumstances and the subsequent interaction with police was within the scope of the community caretaking function, the discovery of the evidence found in the backpack was proper. The trial court properly denied Griffin's suppression motion. We affirm.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).
Id. at 755.
State v. Hutchison, 56 Wn. App. 863, 866-67, 785 P.2d 1154 (1990).
Griffin also argues in his consolidated personal restraint petition that the officers did not have probable cause to arrest him, and the trial court should have suppressed the evidence found in his backpack. He also argues he received ineffective assistance of counsel. We conclude these arguments are unpersuasive and dismiss the petition.
In November 2004, around 5:30 a.m., Griffin was riding in a taxicab when he got into an argument with the driver. The taxi driver quickly stopped the cab at the intersection of NE 80th and Roosevelt, and jumped out and hailed a police officer. Officer Allen Bernstein instructed the taxi driver to pull to the side of the road.
After the taxicab pulled over, the taxi driver told Officer Bernstein that he had a problem fare, Griffin. They had gotten into an argument over directions because Griffin gave the driver conflicting destination addresses. The taxi driver was afraid and told Officer Bernstein he no longer wanted Griffin riding in his cab.
Officer Bernstein asked Griffin where he was going, and Griffin was unable to provide a valid address. The officer believed that Griffin appeared to be under the influence of intoxicants. After Griffin repeatedly put his hands in his pockets despite Officer Bernstein's repeated instructions not to, Officer Bernstein patted him down for weapons. He found none.
Officer Bernstein asked Griffin if he had identification. Griffin did, but refused to show it to him. Officer Bernstein requested backup, and several officers arrived shortly thereafter.
Griffin searched his own pockets for his ID, but could not find it. Griffin told Officer Bernstein that his ID must be in his backpack, which was in the taxi. Griffin wanted to retrieve his ID himself, but Officer Bernstein refused for officer safety reasons. Griffin consented to the officer searching his backpack to locate the identification. During the search of the backpack, Officer Bernstein looked in the main compartment and found a gun on top.
Prior to the discovery of the gun, Griffin orally gave his name to another officer who had arrived on the scene in response to the request for backup. This officer checked the name on the mobile data terminal (MDT) and discovered Griffin was a convicted felon.
Based on the information they had at the time, the police arrested Griffin. During a search incident to arrest, the police discovered numerous items of narcotics, paraphernalia, and stolen property on Griffin and in his backpack.
The charges that followed included four counts of Violation of the Uniform Controlled Substances Act (VUCSA), unlawful possession of a firearm, and two counts of possession of stolen property. Griffin moved to suppress the items found in his backpack as fruits of an unlawful seizure. The trial court denied the motion. Griffin waived his right to a jury trial, and was convicted as charged.
Griffin appeals. During his appeal, we consolidated his personal restraint petition with the appeal.
COMMUNITY CARETAKING FUNCTION
Griffin argues that the trial court erred in failing to suppress the evidence because his detention was not justified under the community caretaking exception. We disagree.
Warrantless searches and seizures are per se unreasonable under the Fourth Amendment to the United State Constitution and article 1, section 7 of the Washington constitution, absent an exception. The State bears the burden of showing a seizure without a warrant falls within one of these exceptions. The community caretaking function is one of the exceptions to the warrant requirement. This exception encompasses not only the search and seizure of automobiles, but also situations involving emergency aid or routine checks on health and safety. In the case of routine checks on health and safety, in order to determine whether a particular encounter is reasonable we balance the `individual's interest in freedom from police interference against the public's interest in having the police perform a `community caretaking function."
State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000); State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).
Acrey, 148 Wn.2d at 746.
State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004).
Acrey, 148 Wn.2d at 749.
Id. at 750.
We `cautiously apply the community caretaking function exception because of `a real risk of abuse in allowing even well-intentioned stops to assist." A routine stop for a safety check that involves a `seizure' by detaining `must be necessary and strictly relevant to performance of the noncriminal investigation.' Once the reasons for initiating the safety check are fully dispelled, the noncriminal investigation must end.
Id. (quoting Kinzy, 141 Wn.2d at 388).
Id.
Kinzy, 141 Wn.2d at 388.
Unchallenged findings of fact from a CrR 3.6 suppression hearing are verities on appeal. We review `conclusions of law in an order pertaining to suppression of evidence de novo.'
Id. at 382.
Acrey, 148 Wn.2d at 745 (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
Here, the trial court concluded as a matter of law that Officer Bernstein's initial contact with Griffin was a reasonable Terry detention to determine whether he was engaged in criminal activity with the taxi driver. There is no dispute that the initial detention fell within the Terry exception. Griffin does not challenge the initial detention, but challenges his continued detention under the community caretaking exception. Griffin argues that once Officer Bernstein determined the dispute was over directions, his suspicions were dispelled, and Officer Bernstein was no longer justified to detain him by requesting ID. We disagree because continued brief detention was proper under the community caretaking function.
Balancing Interests
Griffin asserts that the State's interest in identifying him does not outweigh his interest in being free from police intrusion. Under the circumstances of this case, we must disagree.
In determining the reasonableness of the police intrusion, we consider the totality of the circumstances. `[W]hen `an officer believes in good faith that someone's health or safety may be endangered . . . public policy does not demand that the officer delay any attempt to determine if assistance is needed and offer assistance while a warrant is obtained."
State v. Moore, 129 Wn. App. 870, 880, 120 P.3d 635 (2005).
Id. at 880-81 (quoting State v. Gocken, 71 Wn. App. 267, 276, 857 P.2d 1074 (1993)).
Based on the totality of the circumstances, Officer Bernstein acted reasonably in briefly detaining Griffin. The factors that weigh in favor of detention include: the initial detention of Griffin was a valid Terry stop; the fact that Officer Bernstein came into contact with Griffin in a residential neighborhood early in the morning; Griffin appeared to be under the influence of narcotics and was unable to have a coherent conversation, give a valid address of where he was going, or follow directions; and Griffin no longer had a ride because the cab driver refused to keep him as a fare.
Thus, Officer Bernstein's concerns and actions were reasonable under the circumstances. Undoubtedly, the family and friends of Griffin would have severely criticized the police had the officers left Griffin unattended in his disoriented state, without transportation, in a residential area had he been injured or killed.
Griffin argues that State v. Acrey is distinguishable because Griffin is an adult and responsible for his own decisions and welfare. In Acrey, the supreme court held that after criminal activity was dispelled, the officers were justified to detain Acrey to call his mother, under the community caretaking exception because Acrey was only 12-years-old, he was out after midnight on a weeknight without adult supervision, and was in an isolated area with no residences or open businesses. The court also noted that the officers stopped Acrey to conduct a criminal investigation in response to a citizen 911 call, which was reason for heightened concern that the boys may be engaging in conduct that, while not criminal, could harm themselves or others. The supreme court concluded that the State's interest in protecting Acrey outweighed his interest in moving freely for the brief time it took officers to call his mom.
Id. at 751-52.
Id. at 752.
Id. at 753-55.
Although Griffin is not a minor, he was under the influence of narcotics and posed a risk not only to his own safety, but also to the safety of others. In fact, the taxi driver's reaction to Griffin's behavior shows this. His impaired state did not rise to a level of unconsciousness, like the defendant in State v. Hutchison. However, Griffin appeared to be high on methamphetamines and was `tweaking,' `twitching around a lot,' and was `highly agitated.' The State's interest in ensuring the safety of Griffin and the public outweighed the brief detention.
56 Wn. App. at 864-65 (The search of Hutchison's clothing for identification fell under the community caretaking function exception because Hutchison was in need of aid and assistance. He was lying in a parking lot, unconscious, was unresponsive, and at one point he staggered about in a stupor.).
Finally, Griffin contends that Officer Bernstein's insistence on written identification rather than requesting verbal identification was unreasonable. Because Griffin had already given Officer Bernstein false information and was unable to have a coherent conversation, the request was reasonable.
CONSENT
Griffin also argues that the trial court erred in concluding that he gave valid consent to search his backpack. We disagree.
In order to show a defendant's consent to a search is valid, the State must show that the consent was freely and voluntarily given. To determine whether consent was voluntary or a product of coercion depends upon the totality of the circumstances. Factors in evaluating voluntariness may include the degree of education and intelligence of the individual, whether the individual is restrained, prior illegal police action, prior cooperation or noncooperation of the individual, or any police deception as to the purpose.
State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003).
State v. Armenta, 134 Wn.2d 1, 18, 948 P.2d 1280 (1997) (Talmadge, J., dissenting).
Id.; O'Neill, 148 Wn.2d at 588.
Griffin first argues that any consent he gave to Officer Bernstein for the search of his backpack was vitiated by his unlawful detention. Because Officer Bernstein lawfully detained Griffin under the community caretaking exception, we disagree.
Next, Griffin relies on State v. O'Neill and argues that even if he was lawfully detained, his consent to search the backpack was granted only in submission to a claim of authority, and not voluntarily given. In that case, O'Neill was seized and refused to consent to a search of his vehicle, informing the officer he needed a warrant. The officer told O'Neill he did not need a warrant, but could arrest him and search the car incident to arrest. After O'Neill continued to refuse consent the officer repeatedly pressed the issue and O'Neill finally consented. The supreme court held that under the totality of the circumstances, O'Neill's consent was not voluntary. The court found that the officer never intended to arrest O'Neill, but continued to say he would in order to obtain his consent, which was not informative, but coercive.
Id. at 589.
Id.
Id. at 591.
Id.
Unlike O'Neill, Griffin's consent was not coerced. Officer Bernstein requested identification from Griffin. When Griffin could not find it on his person, he referred Officer Bernstein to his backpack. This was the first Officer Bernstein learned of the backpack. Bernstein never engaged in illegal police action, and he never deceived Griffin as to the purpose of the search. Furthermore, Griffin did not repeatedly refuse consent, but told Officer Bernstein that his ID was in his backpack, `go ahead and look.' Under these circumstances, Griffin's consent to the search was voluntary.
PERSONAL RESTRAINT PETITION
To prevail on a personal restraint petition, the petitioner bears the burden to show that he or she was actually and substantially prejudiced by constitutional error, or that a nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice. This showing must be made by a preponderance of the evidence.
In re Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990); In re Personal Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994).
In re Personal Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992); In re Personal Restraint of Crabtree, 141 Wn.2d 577, 587, 9 P.3d 814 (2000).
Griffin argues that there was no probable cause to arrest him, he received ineffective assistance of counsel, and the trial court erred in finding the State's witnesses credible.
A trial court's credibility determinations are not reviewable on appeal. Thus, we need not review that challenge.
In re Personal Restraint of Davis, 152 Wn.2d 647, 680, 101 P.3d 1 (2004).
PROBABLE CAUSE
Griffin makes several arguments that there was no probable cause to arrest him, and therefore the evidence found in the search incident to arrest should have been suppressed. We disagree.
First, Griffin argues that the State failed to establish the reliability of computerized information, which formed the basis of probable cause to arrest him. Griffin asserts that this is contrary to State v. O'Cain. When a petitioner has failed to raise a Fourth Amendment claim at trial and on direct appeal, he is precluded from raising the issue for the first time by way of collateral review in a personal restraint petition. Griffin raises O'Cain for the first time in his personal restraint petition. Moreover, Griffin cannot make a prima facie showing of actual prejudice because the record contains no information about the reliability of the MDT reporting someone is a convicted felon. Therefore, we need not reach this issue.
108 Wn. App. 542, 552-53, 31 P.3d 733 (2001) (holding that an unverified computer database reporting a particular vehicle as stolen, by itself, does not provide probable cause to arrest).
In re Rountree, 35 Wn. App. 557, 559-60, 668 P.2d 1292 (1983) (distinguishing In re Hews, 99 Wn.2d 80, 87, 660 P.2d 263 (1983) (holding that `the failure to raise a constitutional issue for the first time on appeal is no longer a reason for automatic rejection of a Personal Restraint Petition.' The petitioner in Hews attacked the factual basis supporting his guilty plea, whereas the petitioner in Rountree claimed his arrest was without probable cause.)).
In re Hews, 99 Wn.2d at 88 (If a petitioner can make `at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing. . . .').
Next, Griffin argues that the trial court erred in concluding that the arrest was proper as a felon in possession of a firearm because the officers had the erroneous name `Michael J. Griffen.' Griffin fails to cite any authority or sufficiently argue his position. We need not review an issue raised in passing or unsupported by authority or persuasive argument.
See State v. Johnson, 119 Wn.2d 167, 170-71, 829 P.2d 1082 (1992).
Finally, Griffin argues that because there was no probable cause, the searches of his person and backpack incident to arrest were the fruits of his illegal arrest, and inadmissible. Griffin further asserts that the trial court erred in failing to dismiss this case for lack of probable cause. Both of these arguments fail because the officers had probable cause for his arrest under the circumstances of this case.
INEFFECTIVE ASSISTANCE OF COUNSEL
Griffin argues that he received ineffective assistance of counsel. We disagree.
The test to establish ineffective assistance of counsel is whether "(1) defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant." Ineffective assistance of counsel is a mixed question of law and fact that we review de novo.
State v. James, 48 Wn. App. 353, 359, 739 P.2d 1161 (1987) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Sardinia, 42 Wn. App. 533, 540, 713 P.2d 122 (1986)).
In re Personal Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001).
Griffin argues that at the CrR 3.6 suppression hearing, his defense counsel failed to: (1) offer and move for admission of the evidence that had been marked; (2) call the defense investigator to impeach the State's witnesses; (3) present the officers' statements; (4) argue that Officer Guay ran the name `Michael J. Griffen' to negate probable cause; (5) call his wife to testify; and (6) establish the existence of public transportation and that he had a cell phone to contravene the State's assertion that the seizure was justified by the community caretaking exception. Although Griffin argues that his defense counsel failed to offer certain evidence, call several witnesses, and make specific arguments, he fails to articulate how he was prejudiced. Lacking a showing of this essential element, we need not further review this claim. Griffin has failed in his burden to show that he received ineffective assistance of counsel.
We affirm the judgment and sentence and dismiss the personal restraint petition.
GROSSE and COLEMAN, JJ., concur.