Opinion
66143-4-I
04-02-2012
STATE OF WASHINGTON, Respondent, v. MICHAEL ROOSEVELT SMITH, Appellant.
UNPUBLISHED OPINION
Spearman, J.
Michael Smith appeals his convictions for two counts of delivery of heroin, one count of possession of heroin with intent to deliver, and one count of possession of buprenorphine, a controlled substance. We reverse the possession convictions because they arose from an unlawful search of Smith's apartment. Despite the erroneous admission of evidence in support of the possession crimes, we affirm the delivery convictions because the evidence supporting them was overwhelming. Affirmed in part, reversed in part, and remanded.
FACTS
In June 2009, a confidential informant told Bellingham police officers that she was selling heroin for Michael Smith. She described how Smith kept his heroin and cash inside a lockbox in a walk-in closet in his bedroom. Several months later, the police arranged two "controlled buy" operations, wherein the informant of the police purchased heroin from Michael Smith on August 29, 2009 and September 4, 2009. For the September 4, 2009 transaction, Smith sent a surrogate from his apartment to hand the drugs to the informant. The police recorded the conversations between Smith and the informant about the transactions.
Three months after the buy operations, on December 15, the police attempted to contact Smith about a block away from his house. Smith did not respond, and the police did not detain him to confirm his identity or attempt to arrest him. Instead, on that same day, the police obtained a warrant to arrest Smith in his house. The transcript of the telephonic search warrant hearing indicates a police officer told the commissioner he sought a warrant to "search for the person of Mike [Smith]" to arrest him for "delivery of a controlled substance, namely heroin." The officer also stated the police were "searching for documents of dominion and control." The commissioner granted the warrant, which authorized the police to enter Smith's apartment for the purpose of seizing both Smith and "documents of dominion and control."
The police went to Smith's apartment later that day and kept it under surveillance for four hours. They observed no one else entering. The police entered the apartment, which is around 500-700 square feet, and arrested Smith. There was no testimony about where in the apartment the arrest occurred. The officers performed a "protective sweep" of the entire apartment, including Smith's bedroom, which is located "[s]traight through the front door through the living area [.]" One officer attempted to open a closet in the bedroom, but it was locked. An officer asked Smith for the keys to the closet, but he refused. The officer used a pocketknife to pull the latch open enough to open the door. Inside the closet, the officer found a lockbox.
The police took the lockbox, and the next day, December 16, they obtained a warrant to open the lockbox, based largely on (1) the fact that the August and September deliveries occurred outside his apartment; (2) income tax information for Smith found inside of his apartment; and (3) the June 2009 information provided by the confidential informant. Inside the box, the police found a large quantity of heroin, some cash, and buprenorphine, a controlled substance.
The State charged Smith with two counts of delivery of heroin, as well as possession of heroin with intent to deliver and possession of buprenorphine. Smith moved to suppress the evidence found in the lockbox, and the trial court denied the motion. The jury convicted Smith as charged, and he appeals.
DISCUSSION
Smith argues that because the warrant issued December 15, 2009 did not establish probable cause to search his apartment for documents of dominion and control, the search exceeded the lawful scope of the warrant. He then argues that because lockbox was found as a result of that search, its seizure was unlawful and the lockbox, along with its contents, should have been excluded from his trial. For the reasons stated below, we agree with Smith and reverse the two convictions for possession of controlled substances.
As a threshold matter, the State contends Smith waived the issue of whether probable cause supports the warrant by failing to raise it below in his CrR 3.6 hearing. Generally, we do not consider arguments raised for the first time on appeal. RAP 2.5(a). A party may appeal a manifest error affecting a constitutional right, however, even if the issue was not raised before the trial court. RAP 2.5(a)(3). The defendant must identify a constitutional error and show that it had practical and identifiable consequences in the proceeding; it is this showing of actual prejudice that makes the error manifest, allowing appellate review. State v. Roberts, 142 Wn.2d 471, 500, 14 P.3d 713 (2000); State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999).
Here, the constitutional error alleged is that the police searched a locked closet in Smith's bedroom without probable cause, and the practical and identifiable consequence of the illegal search was that the police found the drugs used to convict him of two counts of possession of a controlled substance. Smith has thus demonstrated actual prejudice and may raise the Sixth Amendment argument for the first time on appeal.
A warrant "may issue only upon a determination of probable cause." State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)). "An application for a warrant must state the underlying facts and circumstances on which it is based in order to facilitate a detached and independent evaluation of the evidence by the issuing magistrate." Thein, 138 Wn.2d at 140 (citing State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869 (1980) and State v. Helmka, 86 Wn.2d 91, 92-93, 542 P.2d 115 (1975)). "Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched." Thein, 138 Wn.2d at 140 (citing Cole, 128 Wn.2d at 286 and State v. Dalton, 73 Wn.App. 132, 136, 868 P.2d 873 (1994)). "Accordingly, 'probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.'" Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn.App. 503, 509, 945 P.2d 263 (1997)).
Here, the police sought a warrant to search for Smith in his apartment and, if found, arrest him for "delivery of a controlled substance, namely heroin." They requested that the warrant include authority to search for and seize "documents of dominion and control." The elements of the crime of delivery of a controlled substance are (1) delivery and (2) "guilty knowledge." RCW 69.50.401(1); State v. Nunez-Martinez, 90 Wn.App. 250, 253, 951 P.2d 823 (1998). The warrant does not explain the meaning of the phrase "documents of dominion and control", but to the extent it refers to the commonly understood meaning, i.e., documents tending to show that Smith resided at the apartment that was searched, such evidence is irrelevant to the crimes for which Smith was to be arrested. Whether Smith exerted dominion and control over the place where he was arrested sheds no light on whether he committed the crimes of delivery of a controlled substance.
In sum, there is no nexus between "documents of dominion and control" and "delivery of a controlled substance." As such, that portion of the warrant permitting the police to search for the documents was not supported by probable cause. Because the lockbox and its contents were found during this search, the evidence was unlawfully obtained and should have been excluded from Smith's trial. Thein, 138 Wn.2d at 140.
To the extent the State argues probable cause is provided by the officer's CrR 3.6 hearing testimony that an informant told the officer about the lockbox in the closet, we reject that argument. To obtain a search warrant, "[i]t is not enough" that the affidavit "set forth that criminal activity occurred at some prior time." State v. Higby, 26 Wn.App. 457, 460, 613 P.2d 1192 (1980). "The facts or circumstances must support the reasonable probability that the criminal activity was occurring at or about the time the warrant was issued." Higby, 26 Wn.App. at 460. In Higby, this court reversed a conviction for maintaining a dwelling for the use and sale of controlled substances where the police obtained a search warrant after a sale of a small quantity of marijuana. Id. at 461 ("We do not believe that one sale of a small quantity of marijuana provides probable cause to search 2 weeks later") (citing State v. Willey, 363 A.2d 739 (Me 1976) (three purchases spanning an eight day period, the last made 31 days prior to issuance of the warrant was insufficient to establish probable cause). Here, the police obtained their information from the informant in June 2009, six full months before they sought the arrest warrant. The information was stale and cannot provide probable cause for the search.
The State argues that even if the warrant to search for documents was not supported by probable cause, the police were entitled to search the closet under the "protective sweep" rule. We reject this argument.
The United States and Washington constitutions prohibit most warrantless searches of homes. State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386 (2009). Police may only search without a warrant under one of the "'few jealously and carefully drawn exceptions to the warrant requirement.'" Id. (quoting State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000)). The State bears the burden of proving that any warrantless search fits within one of these exceptions. Id. Here, the State argues the officers' search of the locked closet in Smith's bedroom was permissible as a protective sweep incident to the arrest.
Under this doctrine, while making a lawful arrest, officers may conduct a reasonable "protective sweep" of the premises for security purposes. State v. Hopkins, 113 Wn.App. 954, 959-60, 55 P.3d 691 (2002) (citing Maryland v. Buie, 494 U.S. 325, 334-35, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). This is not a search in the conventional sense but rather an extension of a Terry frisk or pat down. See Buie, 494 U.S. at 331-34. The scope of such a sweep is limited to a cursory visual inspection of places where a person may be hiding. Hopkins, 113 Wn.App. at 959. If the area immediately adjoins the place of arrest, the police need not justify their actions by establishing a concern for their safety. When the sweep extends beyond this immediate area, however, there must be articulable facts which, taken together with rational inferences, would warrant a reasonable and prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the scene. Id. at 959-60.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Smith contends that although the Fourth Amendment permits "protective sweeps, " the doctrine nevertheless violates article I, section 7 of the Washington Constitution. Smith correctly notes that no Washington case has evaluated the constitutionality of the "protective sweep" doctrine with respect to article I, section 7 and invites us to do so here. But we need not address the question to resolve the issue before us because even under a Fourth Amendment analysis, the police search in this case exceeded the scope of the doctrine.
A protective sweep "may extend only to a cursory inspection of those spaces where a person may be found" and may last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Buie, 494 U.S. at 336. Here, the police did not simply arrest Smith and leave. Rather, they searched the entire (admittedly small) apartment. Upon searching Smith's bedroom, they found a closet door. They attempted to open the door, but it was locked. After Smith refused the officer's request for keys to the door, the police then broke into and searched the closet. The police did not perform a merely "cursory inspection" and they did not simply arrest Smith and leave. Buie, 494 U.S. at 336. This was more than a simple "protective sweep, " and the trial court erred in concluding otherwise.
The State also argues the police properly seized the lockbox in the locked closet, because it was in "plain view." But application of the "plain view" doctrine would require that the police were justified in entering the locked closet in the first place. State v. O'Neill, 148 Wn.2d 564, 582-83, 62 P.3d 489 (2003). As is described above, the police were not justified in entering the closet. The trial court's ruling that the lockbox was properly seized under the plain view doctrine was therefore erroneous.
In sum, the trial court erred by denying the motion to suppress. As such, Smith's convictions flowing from the drugs found in the lockbox, namely, the convictions for possession of heroin with intent to deliver and possession of buprenorphine, must be reversed.
Smith also argues that his remaining two convictions for delivery of a controlled substance must be reversed because the evidence that he "possessed a substantial quantity of heroin when he was arrested prejudiced his ability to receive a fair trial" on those counts. Alternatively, he argues that he was deprived of a fair trial on the delivery counts by the trial court's denial of his motion to sever the possession counts. But in either case, the issue is whether the error is harmless.
When evidence of an unlawful search is improperly admitted against a defendant, we apply a harmless error analysis. State v. Smith, 165 Wn.App. 296, 316, 266 P.3d 250 (2011) (citing State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 (1985)). A constitutional error is harmless if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Guloy, 104 Wn.2d at 425-26. This test is met where the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Id.
Here, the evidence that Smith delivered heroin as charged is overwhelming. Each count arose from a police arranged "controlled buy" operation, wherein a confidential informant purchased controlled substances from Smith. The police observed the transactions. The jury heard the testimony of police officers involved in this operation, as well as the testimony of the confidential informant. The jury also heard an audio recording of one of the controlled buys. Although Smith contends the testimony of the informant conflicted with his testimony, that is a credibility determination to be resolved by the jury. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In short, the evidence of Smith's guilt on the delivery of heroin counts was overwhelming, and the admission of the evidence improperly taken from the lockbox in his closet was harmless.
Even assuming it was error to deny Smith's severance motion, that error is also harmless. Evidence admitted erroneously because severance was improperly denied is reviewed under the non-constitutional harmless error standard. State v. Bythrow, 114 Wn.2d 713, 722 n.4, 790 P.2d 154 (1990). Under that standard, we ask whether, within reasonable probabilities, the outcome of the trial would have been different if the error had not occurred. Id., State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). Because we conclude that the more rigorous constitutional test is met, it follows that this test is met as well.
In his pro se statement of additional grounds, Smith argues the charging document was constitutionally insufficient in that it did not include the essential elements of the charged crimes. We reject this argument because Smith fails to describe what elements he believes are missing, and a review of the amended information shows all of the essential elements of the charged crimes are present. Smith also contends the State withheld evidence in discovery relating to an attempted but failed "controlled buy" on August 20, 2009, before the two completed deals. This allegation however, appears to be related to matters outside the record, and moreover, Smith does not explain how, even if true, it impaired his ability to prepare his defense. Finally, Smith argues the accomplice liability instruction given in connection with the charge of delivery of heroin on September 4, 2009 is faulty under State v. Roberts, 142 Wn.2d 471, 14 P.3d. 713 (2000) and State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000). We reject this argument. The accomplice liability instruction given to the jury did not use the impermissible "a crime" language found faulty in those cases.
We reverse the convictions for possession of heroin with intent to deliver and possession of buprenorphine, affirm the two convictions for delivery of heroin, and remand for further proceedings consistent with this opinion.