Opinion
No. 26318-1-II.
Filed: April 26, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 98-1-03952-5, Hon. Stephanie A. Arend, August 11, 2000, Judgment or order under review.
Counsel for Appellant(s), Pattie Mhoon, Attorney At Law, Ste 488, 949 Market St, Tacoma, WA 98402.
Counsel for Respondent(s), John C. Hillman, Pierce Co. Deputy Pros. Atty., 930 Tacoma Ave S Rm 946, Tacoma, WA 98402.
David J. Rogers appeals his conviction for unlawful manufacture of a controlled substance, challenging the denial of his suppression motion. Finding that (1) Rogers lacks standing to challenge the deputies' entry onto another person's property where they obtained incriminating evidence that supported the search warrant for Rogers' car; and (2) in the alternative, the emergency exception to the warrant requirement supported the entry, we find no trial court error in denying the suppression motion. Further, the trial court properly allowed a witness to assert his Fifth Amendment privilege and the record does not support Rogers' ineffective assistance of counsel argument. Thus, we affirm.
FACTS
Early in the morning of September 5, 1998, a newspaper delivery person contacted the Pierce County Sheriff Department to report a suspicious gas cloud and odor coming from property owned by James Gasaway's parents. The delivery person associated the odor with the manufacture of methamphetamine.
Deputies Brian Witt, Winthrop Sargent, John Heacock, and the fire department responded to the call. Witt and Sargent had prior experience investigating methamphetamine labs, and Sargent also had extensive experience dealing with hazardous chemicals in general.
As the deputies approached the gated driveway located approximately 50 feet from the roadway, they detected a strong smell of ammonia and other chemicals associated with the manufacture of methamphetamine. Sargent became concerned about the potential health and safety risks associated with the fumes and chemicals. Gasaway and William Fedderson met the deputies as they approached the driveway gate. The deputies went around the gate on a worn pathway and spoke to the two men. David Rogers, whom Sargent had seen near the residence when they first approached, walked away as the deputies talked to the other men. Sargent became concerned about Rogers' whereabouts.
The deputies told the men that they were concerned about the fumes, the potential methamphetamine laboratory, and public health and safety.
The deputies noticed that the odor and effect of the fumes became stronger as they proceeded up the driveway; the fumes began to give them headaches.
Gasaway told the deputies that he did not want them to search the property because of the possible presence of stolen cars. Witt reassured Gasaway that they were concerned only about the fumes and were not there to investigate possible stolen vehicles.
While Witt and Heacock continued to speak to the men, Sargent walked up the driveway and around a mobile home on the property where he observed several propane-type pressurized cylinders, a can of carburetor cleaner, several unmarked five gallon buckets, miscellaneous glassware, and several unmarked plastic chemical containers similar to those that contain chemicals related to the manufacture of methamphetamine. The deputies arrested the three men on outstanding warrants and then obtained a search warrant for the property based in part on the items Sargent had observed when he walked around the property. A subsequent search of Rogers' vehicle revealed numerous items used in the manufacture of methamphetamine.
The State charged Rogers with unlawful manufacturing of a controlled substance. Rogers moved to suppress the evidence discovered in his vehicles and on the Gasaway property, arguing that the deputies illegally obtained the information that was in the probable cause affidavit. He contended that he had standing to challenge the search because he had paid Gasaway to allow him to repair his car on the property after it had broken down outside the property.
The trial court found that Rogers did not have standing to object to the search and that, even if he did, the deputies entered the property under the emergency exception and discovered the items that supported the search warrant in plain view. Accordingly, the trial court issued the following findings and conclusions:
FINDINGS OF FACT
1. September 5, 1998, Pierce County Sheriff Dept. (PCSD) deputies Witt, Heacock, and Sargent were dispatched to the area of 34405 Kinsman Road in Pierce County. County fire dept. units had also been called. A newspaper delivery person had reported a gas cloud coming from the property. She reported the smell as being associated with the manufacture of methamphetamine.
2. Dep. Sargent, member of the PCSD clandestine laboratory team, has had extensive training in investigating and handling methamphetamine manufacturing sites. He has had further extensive training recognizing, identifying, and dealing with hazardous chemicals in general. Before returning to a patrol assignment, Dep. Witt was assigned to the PCSD narcotics unit. Both have been present at identified methamphetamine manufacturing sites on numerous occasions. Through their training and experience, they are familiar with the appearance, smell, and hazardous nature of the chemicals used in the manufacture of methamphetamine.
3. When they arrived on the road outside the gate of the residence, Dep. Witt smelled a strong ammonia chemical smell. Dep. Sargent noticed the smell of hazardous chemicals he associated with the manufacture of methamphetamine.
4. A metal gate to the property was approximately 50 feet in from Kinsman Rd. [sic] Although the gate was closed, there was a gap at the end between the gatepost and a nearby tree. Between the post and the tree was a worn path where persons had obtained ingress and egress to and from the property.
5. Deputies walked around the gate on the path. They met the property owner, James Gasaway, and a companion, William Fedderson, approximately 35 feet up the driveway from the gate. Dep. Sargent had seen Rogers near the residence when Sargent arrived at the scene. Rogers was not in the driveway when Witt and Sargent were speaking with Gasaway. Sargent became concerned with the whereabouts of Rogers.
6. Dep. Witt told Gasaway that Witt was more concerned about the source of the chemical fumes and a potential methamphetamine lab because of concern for public safety than he was about any possibly stolen cars on the property.
7. While speaking with Gasaway in the driveway, Deputies began to get headaches from the chemical fumes coming from the property.
8. Dep. Sargent noticed that the smell and effects of the hazardous chemicals, which he had detected at the road, became stronger as he walked up the driveway.
9. Gasaway, the property owner, nor the others present did not tell deputies to leave, nor did he express an objection to deputies being on the driveway.
10. Dep. Sargent did a quick walk around the exterior of the buildings to check for any persons that may have become overcome or affected by the fumes. When he did this, he noticed four 20-pound pressurized propane tanks, buckets, glassware, and chemicals; all typically used in the clandestine manufacture of methamphetamine.
11. Gasaway, and later, Rogers were arrested in the driveway because there were outstanding warrants for their arrest.
12. After the arrests, PCSD obtained a search warrant to search the premises. PCSD did not search the premises or the cars on the property until the search warrant was authorized.
REASONS FOR ADMISSIBILITY OR INADMISSIBILITY OF THE EVIDENCE
1. Pierce County Sheriff deputies reasonably believed that chemical fumes reported by a passerby and detected by the deputies at 34405 Kinsman Rd. East posed a hazard to the health and safety of occupants of the property and the neighborhood in general.
2. The deputies were justified in entering the property, contacting the occupants regarding the chemical fumes, and checking the property for persons possibly affected by the fumes, and the general source of the fumes.
3. While looking for occupants of the property and the general source of the fumes, Dep. Sargent discovered, in plain view, items and chemicals associated with clandestine methamphetamine manufacture.
4. The search warrant was based upon probable cause.
5. Search of the property was lawful.
6. Search of Rogers' person was lawful as incident to arrest.
7. The items seized in the search are admissible. The motion to suppress is denied.
Clerk's Papers at 6-10.
Rogers' defense at trial was that he was present merely to repair his vehicle and that he was not on the site to participate in a methamphetamine manufacturing operation. To support this argument, Rogers' counsel told the jury during his opening statement that Rogers' girlfriend would testify that he spent the preceding night at home and did not leave until after the gas cloud was reported. Rogers testified to this effect but his counsel did not call the girlfriend.
Gasaway testified for the State. He asserted that he had allowed Rogers to manufacture methamphetamine on the property in exchange for a supply of drugs. But Gasaway asserted his Fifth Amendment privilege when Rogers' counsel attempted to ask him about past drug labs on the property.
The jury convicted Rogers as charged.
I. Motion to Suppress
Rogers challenges the trial court's findings of fact 9 through 12 and all seven of its conclusions. We review a trial court's denial of a motion to suppress evidence by examining whether substantial evidence supports the challenged findings and whether those findings support the trial court's conclusions of law. State v. Teran, 71 Wn. App. 668, 671, 862 P.2d 137 (1993). Rogers asserts that he has standing to challenge the search, that the evidence does not support the conclusion that the deputies entered the premises under an exception to the search warrant requirement, that the items supporting the search warrant were not in plain view, and, consequently, that the court erred in not suppressing the evidence obtained under the search warrant.
A. Standing
`It is well-established that if information contained in an affidavit of probable cause for a search warrant was obtained by an unconstitutional search, that information may not be used to support the warrant.' State v. Ross, 141 Wn.2d 304, 311-12, 4 P.3d 130 (2000). But if Rogers lacks standing to challenge Sargent's `search' of the property, he may not complain about the legality of the search warrant.
1. Automatic Standing
Initially, Rogers asserts that he has automatic standing because he had a possessory interest in the vehicle searched. To rely on the doctrine of automatic standing, Rogers must show that (1) the charged offense involved possession `as an `essential' element of the offense;' and (2) he possessed `the contraband at the time of the contested search or seizure.' State v. Goucher, 124 Wn.2d 778, 787, 881 P.2d 210 (1994) (citations omitted); see also State v. Jones, 104 Wn. App. 966, 973, 17 P.3d 1260, review denied 144 Wn.2d 1005, 29 P.3d 718 (2001). Here, Rogers fails to meet the first prong as possession is not an essential element of the crime of illegal manufacture of a controlled substance. Thus, his claim of automatic standing fails.
2. Legitimate Expectation of Privacy
Despite the lack of automatic standing, Rogers may challenge the search if he possessed a personal and legitimate expectation of privacy in the place searched or the thing seized. See State v. Carter, 127 Wn.2d 836, 841, 904 P.2d 290 (1995); Goucher, 124 Wn.2d at 787-88. But, as Fourth Amendment rights are personal, he may not assert them vicariously for another. Goucher, 124 Wn.2d at 787; State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358 (1993).
To establish standing based upon an expectation of privacy, Rogers must establish that he had an actual subjective expectation of privacy in the property searched and that this expectation was reasonable. State v. Gocken, 71 Wn. App. 267, 279, 857 P.2d 1074 (1993); Jones, 68 Wn. App. at 847, 850-51. Merely showing that he was legitimately on the property or a casual guest will not alone be sufficient to establish a reasonable expectation of privacy. State v. Boot, 81 Wn. App. 546, 551, 915 P.2d 592 (1996); Jones, 68 Wn. App. at 851.
Rogers' support for his privacy interest argument is merely that `[t]here can be no dispute that Rogers has a reasonable expectation of privacy in his own vehicles and his property inside the vehicles.' Br. of Appellant at 19. But Rogers' privacy interest in his own vehicle is not determinative because the deputies had a search warrant for the vehicle.
Below Rogers asserted that he had a privacy interest in the property itself because he had paid Gasaway so he could leave his vehicle on the property. He has abandoned this argument on appeal.
The proper question is whether Rogers had a privacy interest in the Gasaway property and, thus, can object to the officers being in a position to obtain the incriminating evidence for the probable cause affidavit.
At most, the evidence shows that Gasaway gave Rogers temporary access to a portion of his property to store and repair his vehicle. Temporary access to premises does not establish the necessary level of privacy interest. Jones, 68 Wn. App. at 849. Further, Rogers does not assert a privacy interest in the property as a whole. See also State v. Putnam, 65 Wn. App. 606, 829 P.2d 787 (1992) (defendant lacked standing to object to search of father's outhouse for murder weapon).
Because Rogers fails to establish a reasonable expectation of privacy in the Gasaway property, he lacks standing to challenge the deputies' entry onto the property and their subsequent acquisition of evidence to support the request for a search warrant of Rogers' vehicle.
B. Sargent's Search
Because of our disposition of the standing issue, we need not reach Rogers' challenge to the trial court's conclusion that the emergency exception to the warrant requirement justified the deputies' entry onto the property. But we note that the evidence clearly was sufficient to support the challenged findings of fact, numbers 9 through 12, and the admissibility of the evidence found in Rogers' car.
Although Rogers assigns error to finding of fact 12, which states that the deputies did not search Rogers' vehicles until after obtaining the search warrant, he does not present any argument related to this finding. And he does not assign error to findings of fact 4 or 5, which support the conclusion that the entry to the driveway was impliedly open. See State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981).
Warrantless searches are per se unreasonable under both the Fourth Amendment and article I, section 7 of our State constitution unless they fall within a specific and well established and well delineated exception to the warrant requirement. Ross, 141 Wn.2d at 312. This rule applies equally to a person's home and the area surrounding the home. Ross, 141 Wn.2d at 312.
To establish an emergency exception to the warrant requirement, the State must establish that the police searched the area because of a perceived need to render aid or assistance. State v. Loewen, 97 Wn.2d 562, 568, 647 P.2d 489 (1982).
This doctrine is different from the `exigent circumstances' exception to the warrant requirement. `Unlike the exigent circumstances exception, `the emergency [aid] doctrine does not involve officers investigating a crime but arises from a police officers' community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm." State v. Kinzy, 141 Wn.2d 373, 386 n. 39, 5 P.3d 668 (2000), cert. denied sub nom. Washington v. Kinzy, 531 U.S. 1104 (2001) (quoting State v. Leupp, 96 Wn. App. 324, 330, 980 P.2d 765 (1999)).
The State must show (1) that the searching officer subjectively believed an emergency existed; and (2) that a reasonable person in the same circumstances would have thought an emergency existed. Loewen, 97 Wn.2d at 568. Both prongs are met here.
The subjective prong was met by evidence that the deputies smelled the fumes from the public roadway and knew that the fumes and chemicals related to the manufacture of methamphetamine are hazardous; that Sargent was starting to get a headache from the fumes; that Witt told Gasaway that he was concerned about the potential threat to public safety and finding the source of the chemical fumes; and that Sargent said his primary concern was to determine whether there was anyone on the property who might be hurt and to ensure there were no other people on the property who could potentially harm the deputies.
The objective prong was met by evidence that a newspaper delivery person first smelled the fumes from the public roadway and was sufficiently concerned to call the sheriff. Further, the fumes had an obvious effect on the deputies. As the deputies were not sure how many people were on the property, it was objectively reasonable to do a cursory walk around the property to locate any people subject to harm from the fumes.
We are not persuaded by Rogers' reliance on State v. Gave, 77 Wn. App. 333, 890 P.2d 1088 (1995), to establish that the deputies should have immediately requested a search warrant instead of entering the property. Gave does not involve the emergency exception to the warrant requirement and the odor there was of marijuana, which, unlike the fumes from a methamphetamine laboratory, do not necessarily pose an immediate health and safety risk.
As Sargent was legally on the property when he observed the items that supported the search warrant and nothing in the record indicates that these items were not in open view, Rogers' allegation that the deputies conducted a search without a warrant fails. See State v. Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996) (where a law enforcement official detects something by using his or her sense from a lawful vantage point, no search has occurred).
II. Ineffective Assistance of Counsel
Pro se, Rogers asserts that his trial counsel was ineffective for failing to call Rogers' girlfriend to testify about his whereabouts on the night of September 4 and the morning of September 5.
To succeed on a claim of ineffective assistance of counsel, Rogers must show (1) that his counsel's representation `fell below an objective standard of reasonableness based on consideration of all the circumstances;' and (2) that the errors resulted in prejudice, i.e., there is a reasonable probability that but for counsel's errors the result of the trial would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
We examine the entire record; Rogers must overcome a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335. He may do so by showing that counsel lacked a legitimate tactical reason for his prejudicial acts and omissions. McFarland, 127 Wn.2d at 336. But on appeal, we will not consider allegations that are not supported by evidence in the trial court record. McFarland, 127 Wn.2d at 335.
Here, the record contains no information as to why counsel did not call Rogers' girlfriend. Thus, Rogers has failed to overcome the strong presumption that counsel either properly attempted to obtain this testimony or declined to do so for a tactical reason. See McFarland, 127 Wn.2d at 335.
III. Fifth Amendment Rights
Finally, Rogers asserts pro se that the trial court abused its discretion when it allowed Gasaway to assert his Fifth Amendment rights and refuse to answer questions concerning past methamphetamine manufacturing on his parents' property.
We review a trial court's decision to allow a witness to invoke his or her Fifth Amendment privilege for abuse of discretion. State v. Hobble, 126 Wn.2d 283, 291, 892 P.2d 85 (1995); State v. Lougin, 50 Wn. App. 376, 382, 749 P.2d 173 (1988). A trial court abuses its discretion if it bases its decision on untenable grounds or for untenable reasons. State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996). Gasaway was entitled to assert his Fifth Amendment privilege against self-incrimination if the answer to Rogers' question was clearly incriminating. Lougin, 50 Wn. App. at 379-81. But the danger of self-incrimination had to be substantial, not merely speculative. Hobble, 126 Wn.2d at 290. And the court could have compelled Gasaway to testify over his claim of privilege if he had immunity from prosecution for the crimes to which the testimony related. Hobble, 126 Wn.2d at 291.
Here, Gasaway freely answered questions related to the lab that the deputies discovered on September 5; he refused to answer questions that would clearly connect him to other lab operations. Although Rogers' counsel argued that Gasaway had broad immunity, the State contradicted this assertion and the trial court apparently accepted the State's characterization. Rogers does not direct us to anything in the record to show that this conclusion was incorrect. Thus, the trial court did not err in allowing Gasaway to assert his Fifth Amendment privilege.
Finding no error, 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.
WE CONCUR: MORGAN, P.J., BRIDGEWATER, J.