Opinion
No. 36161-2-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Skamania County, No. 06-1-00094-1, E. Thompson Reynolds, J., entered March 29, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Hunt, J.
UNPUBLISHED OPINION
John M. Melcher appeals his convictions for possession of methamphetamine with intent to deliver and use of drug paraphernalia, arguing that (1) the search of his vehicle went beyond the scope of a valid search incident to arrest and (2) his counsel ineffectively represented him by failing to investigate the validity of the warrant that led to his arrest. Because the search inside the dash of Melcher's vehicle was within the scope of a valid search incident to arrest, and because Melcher fails to show prejudice from his attorney's failure to investigate, we affirm.
FACTS
When Deputy David Garcia saw Melcher speeding, he turned to follow Melcher's pickup and activated his overhead lights. Before Melcher pulled over, Garcia observed Michial Brown, a passenger in the vehicle, bend down for several seconds as though he were "hiding something or he was moving something around on the floor." Report of Proceedings (RP) at 11. As soon as the vehicle stopped, Melcher got out, met Garcia at the pickup's back bumper, and gave Garcia his driver's license. Garcia instructed Melcher to return to his vehicle. Garcia then checked Melcher's identification with his dispatcher and learned that Melcher had an outstanding warrant. By this time, Melcher had again left his vehicle and Garcia again met him at the rear bumper. Melcher acknowledged that he had an outstanding warrant, and Garcia arrested him.
Melcher asked Garcia whether, rather than impounding his vehicle, Garcia would allow Brown to drive it away. Garcia said he would if Brown had a valid drivers license. Leaving Melcher handcuffed and sitting on the hood of the patrol car, Garcia approached the passenger side of Melcher's vehicle and asked Brown for his driver's license. Brown opened the door of the vehicle to get his wallet out of his back pocket, and Garcia saw a glass pipe with white residue on the floorboard next to Brown's foot. Garcia arrested Brown, placed both Brown and Melcher in the patrol car, then returned to search the vehicle. Under the seat, he found a measuring spoon with white residue on it and a black digital scale. When he opened the glove box, the dash panel fell off, and Garcia noticed that the stereo was not anchored to the dash. Garcia removed the stereo from the dash and saw a cloth bag within the dash, near the steering column. Garcia reached in and removed the cloth bag; it contained a large quantity of methamphetamine.
The State charged Melcher with possession of methamphetamine with intent to deliver and use of drug paraphernalia. Melcher moved to suppress all the physical evidence discovered after Garcia approached Brown, arguing that Garcia did not have probable cause to approach Brown. Melcher's counsel also stated that:
One of the issues that I anticipated bringing up at this point in time — unfortunately I could not find support of case law — basically attacked the issuance and the
reason why there had been a warrant issued out of district court. I represented Mr. Melcher in that matter and there was some misunderstanding as to whether or not there had, in fact, been a warrant issued.
However, even if the warrant had not — or was not supposed to be issued, basically it's my understanding from reading the case law that Deputy Garcia would be acting under a good faith exception wherein the warrant had been confirmed at the time that Mr. Melcher was arrested. . . .
RP at 7.
Garcia testified that he had intended to search the vehicle incident to Melcher's arrest regardless of Brown's suspicious behavior. The trial court found that Garcia could search the passenger compartment of the vehicle as a search incident to the arrests of both Brown and Melcher and denied the motion to suppress.
A jury convicted Melcher on both charges.
ANALYSIS I. Search Incident to Arrest
Melcher argues that Garcia's search within his dashboard exceeded the permissible physical scope of a search incident to arrest.
This claim differs from the claim made Melcher's motion to suppress, which focused solely on Garcia's general right to search the vehicle, not on the scope of that search. Melcher's claim here is not waived, however, because the record from the motion below contains sufficient factual background for this court to address the new claim. See State v. Contreras, 92 Wn. App. 307, 314, 966 P.2d 915 (1998). Because this court addresses the issue on the merits, it need not reach Melcher's claim that counsel was ineffective for failing to argue it in his motion to suppress.
Under the Washington Constitution article I, section 7, warrantless searches are per se unreasonable 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 exception is a search incident to a valid arrest. State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001). When a suspect is in a vehicle at the time of arrest, the police may search the vehicle's entire passenger compartment incident to the arrest. State v. Johnson, 128 Wn.2d 431, 451, 909 P.2d 293 (1996) (citing New York v. Belton, 453 U.S. 454, 460-61, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). The passenger compartment includes any area of the interior of a vehicle that the driver may reach without leaving the vehicle. Johnson, 128 Wn.2d at 453; State v. Valdez, 137 Wn. App. 280, 285-86, 152 P.3d 1048 (2007), review granted, 163 Wn.2d 1010 (2008).
Melcher's argument is analogous to one attempted in State v. Boursaw, 94 Wn. App. 629, 635, 976 P.2d 130 (1999). In that case, a drug dog assisting in a search incident to arrest alerted the officer to an area beneath the dashboard ashtray. Boursaw, 94 Wn. App. at 631. The officer removed the ashtray and discovered a plastic baggie of methamphetamine in the dash. Boursaw, 94 Wn. App. at 631. The court held that because a driver or passenger may pull out the ashtray and reach into the area behind it without exiting the vehicle, the search of that area did not exceed the scope of a search incident to arrest. Boursaw, 94 Wn. App. at 636; see also Vrieling, 144 Wn.2d at 495 (defendant had ready access to the living quarters of a motor home from the passenger compartment); Johnson, 128 Wn.2d at 448 (defendant had ready access to the sleeper portion of the cab of a tractor-trailer).
Courts in other jurisdictions have also found searches of secret compartments in cars to be within the scope of a valid search incident to arrest as "containers" if they are accessible from the passenger compartment. See Belton, 453 U.S. at 460 n. 4 (search incident to arrest of vehicle includes contents of any containers found within the passenger compartment). For example, in United States v. Veras, 51 F.3d 1365, 1372 (7th Cir. 1995), the court found that a secret compartment built into the deck between the backseat and rear window was part of the passenger compartment, and therefore a permissible container to search incident to arrest. Similarly, in United States v. Willis, 37 F.3d 313, 317 (7th Cir. 1994), the court recognized a removable dashboard radio itself as a container that the police could search incident to arrest (the defendant had hidden crack cocaine in the radio casing). And in People v. Blakely, 278 Ill. App. 3d 704, 707, 663 N.E.2d 760, 215 Ill. Dec. 517 (Ill.App.Ct. 1996), the Court of Appeals stated that if a car stereo is unattached by any screws and may simply be pulled out to access the space behind it, the area behind the stereo is an accessible "container" searchable incident to arrest.
Here, the methamphetamine was accessible to a person in the passenger compartment because both the dash panel and radio were unattached and easily removable. See Boursaw, 94 Wn. App. at 636; Blakely, 278 Ill. App. 3d at 707. Thus, the dash was a searchable container under Belton, and within the scope of a valid search incident to arrest, just as in Boursaw.
II. Ineffective Assistance of Counsel
Melcher also argues that his counsel was ineffective for failing to investigate the validity of the warrant leading to Melcher's arrest despite his admitted concerns.
The federal and state constitutions guarantee effective assistance of counsel. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, Melcher must show that (1) counsel's performance was deficient and (2) that deficient performance prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Counsel's performance is deficient when it falls below an objective standard of reasonableness. McFarland, 127 Wn.2d at 334-35. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. McFarland, 127 Wn.2d at 335.
Even if we assume that counsel should have investigated whether the arrest warrant was valid, Melcher has not shown that the failure prejudiced him. To demonstrate prejudice, Melcher must prove that the warrant was invalid; otherwise, the court would not have granted a motion to suppress based on the warrant and Melcher's trial result would have been the same. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). Yet nothing in the record tells us that the warrant was invalid. If Melcher wishes to present facts not in the record, he must do so in a personal restraint petition. See McFarland, 127 Wn.2d at 338.
Affirmed.
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.
HUNT, J. and PENOYAR, A.C.J., concur.