Opinion
No. 60144-0-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10858-9, Dean Scott Lum, J., entered June 1, 2007.
Affirmed by unpublished per curiam opinion.
A jury convicted R.D. Spearman of promoting prostitution in the first degree and possessing cocaine with intent to manufacture or deliver. Spearman appeals the trial court's denial of his pretrial motion to suppress evidence seized from his motel room, contending that King County sheriff's deputies did not have probable cause to arrest him because the State's informant, a prostitute caught in the act, was not reliable. Spearman also challenges several of the factual findings entered in support of the order denying suppression. We conclude that the deputies had probable cause to arrest Spearman and that exigent circumstances justified their entry into the motel room in which he was arrested. Accordingly, we affirm.
Deputy Christopher Adams was on duty in the area of Aurora Avenue in Seattle around 10 p.m. on December 17, 2006, when he saw a woman, later identified as Elizabeth Burke, walking from bus shelter to bus shelter without attempting to board any passing coaches. Burke eventually got into a car driven by a man, after having a brief conversation with him. They first drove to a convenience store and then drove to and parked in a shielded area behind a closed business. Deputy Adams contacted Deputy Luke Hillman for assistance. The two deputies approached the vehicle and, with the illumination of their flashlights, witnessed Burke performing oral sex on the driver, later identified as Mr. Nguyen. The deputies arrested Burke and Nguyen and read them Miranda rights. Both Burke and Nguyen admitted that he had paid Burke $40 to perform oral sex. While Deputy Hillman "processed" Nguyen, Deputy Adams interviewed Burke in his patrol car.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In its brief, the State contends that deputies released Nguyen after citing him for patronizing a prostitute. However, the record only describes Nguyen as being "processed."
The deputies checked Burke's identity against police records, which showed that Burke had a Pierce County warrant for her arrest and that she had been arrested several times for prostitution. Burke admitted that she was a prostitute and stated that she did so in order to support her cocaine addiction. When Deputy Adams asked Burke about her history of prostitution, Burke volunteered that she was staying at the Orion Motel with a man she identified as "R.D." She did not provide a last name, but described R.D. as a 47-year-old black man who was staying in room 26 of the motel. Burke said R.D. had five or six girls working for him in the area and that he cooked and dealt crack cocaine out of his room. She said that in return for her prostitution earnings and sex, R.D. gave her cocaine and let her sleep in motel rooms that he rented. Burke said R.D. hit and threatened her if she did not prostitute herself and turn over her earnings to him. While talking about R.D., Burke appeared afraid and began to cry.
The verbatim report of proceedings spells the motel name in more than one way. Both parties agree that "Orion" is the correct spelling.
Deputy Adams testified at the suppression hearing that Burke's demeanor and mannerisms were consistent with someone on drugs, but that she was not seriously impaired. Rather, Deputy Adams concluded that Burke was nervous and frightened. The deputies did not threaten Burke or make any promises to her.
With Burke still under arrest, the deputies drove her to the Orion Motel. Burke identified R.D.'s motel room. The deputies also had Burke telephone R.D. to confirm his presence. At some point, Burke indicated to the deputies that motel management concealed R.D.'s illegal behavior. However, a motel clerk confirmed to Deputy Hillman that an "R.D." was registered to room 26 and provided documentation identifying R.D. as R.D. Spearman. The deputies checked police records and were able to find a photograph of Spearman.
As the deputies were preparing to approach Spearman's room, another vehicle pulled into the parking lot. When the driver got out, Burke identified him as "Aaron" and said that he lived in another room at the motel and was a pimp and drug dealer. The deputies saw the motel clerk approach Aaron and witnessed a whispered conversation between the two. When the clerk noticed that the deputies were watching, she immediately went back inside the motel office. Deputy Adams approached Aaron and spoke with him. Aaron then left the scene.
The deputies then went to room 26. They knocked on the door, announced that they were from the sheriff's office, and requested that the door be opened. The deputies immediately heard water running, a toilet flushing, and the opening and closing of a window. The deputies knocked two or three more times as noises of movement from inside the room continued. Eventually, the door was opened by a man matching the description of R.D. provided by Burke. The man confirmed that he was R.D. and complied with a request to put his hands on his head. He was then told to turn around and put his hands behind his back. Instead, Spearman took one or two steps back into the room. The deputies crossed the threshold into the room, grabbed Spearman's arms, spun him around, and arrested him.
While they were arresting Spearman, the deputies scanned the room and saw items they recognized as drugs and drug paraphernalia scattered throughout, as well as many items of women's clothing and accessories. The deputies also could see water, a wet plunger, and white powder on the floor next to the toilet, as well as white powder and a rock-like substance on the counter. They also saw that the room's window was slightly open. The deputies eventually recovered a baggie of what they believed to be crack cocaine on the ground below the window.
The State initially charged Spearman with promoting prostitution and possessing cocaine. The State later amended the controlled substance charge to possession of cocaine with intent to manufacture or distribute.
Spearman moved to suppress the evidence seized at the motel. At the end of the suppression hearing, in which Burke did not testify, the trial court, with one exception, denied Spearman's motion to suppress the evidence seized at the motel. Burke testified at trial. Spearman was found guilty of both charges.
The trial court excluded Ecstasy and a pill bottle seized because they were not in plain view during the deputies' initial visual sweep of the motel room.
II
We first address Spearman's challenges to several of the factual findings entered by the superior court following the suppression hearing.
The trial court's written findings of fact and conclusions of law were not entered until January 18, 2008, after Spearman filed his appellant's brief. "It is the general rule in this state that findings and conclusions may be submitted and entered even while an appeal is pending." State v. Hillman, 66 Wn. App. 770, 773, 832 P.2d 1369 (1992) (quoting State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984)). Submitting findings of fact and conclusions of law after parties have submitted their briefs on appeal is allowable so long as the appellant is not prejudiced by the delay. McGary, 37 Wn. App. at 861. Here, Spearman was able to challenge the factual findings in his reply brief. Both parties acknowledged in their opening briefs that Spearman had reserved the ability to challenge the written factual findings once they were filed.Spearman does not contend that he was prejudiced by the delay.
"[I]n reviewing findings of fact entered following a motion to suppress, we review only those facts to which error has been assigned. Where there is substantial evidence in the record supporting the challenged facts, those facts will be binding on appeal." State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993)).
Spearman first challenges Finding of Fact A(5):
While Deputy Adams was verifying Burke's name on his computer, Burke spontaneously stated that she was staying at the Orion Motel on Aurora Avenue and that she was provided a room and crack cocaine in exchange for the proceeds from her acts of prostitution.
Spearman concedes that while the factual finding was the "gist" of Deputy Adams' testimony, Deputy Hillman testified that he could not recall whether Burke's statements were spontaneous or in response to questioning. Deputy Hillman testified that
I don't recall if [w]e asked her if she worked for anybody, but she volunteered on her own that she was staying at a motel off Aurora, and in exchange for the proceeds from prostitution she was provided with a room and crack.
The fact that Deputy Hillman could not remember whether he or Deputy Adams asked Burke if she worked for someone does not alter Deputy Hillman's unequivocal testimony that Burke volunteered the information both as to where she was staying and that she was given a room and crack cocaine in exchange for prostitution proceeds. Thus, substantial evidence supports factual finding A(5).
Spearman next challenges Finding of Fact A(8):
Burke appeared afraid and started crying while describing her relationship with the defendant.
Spearman concedes that Deputy Adams' testimony supported this factual finding, but claims that Deputy Hillman's testimony did not. The record indicates that after Deputy Hillman advised both Nguyen and Burke of their Miranda rights, it was Deputy Adams who interviewed Burke while she sat in Deputy Adams' patrol vehicle while Deputy Hillman interviewed Nguyen nearby. During the suppression hearing, when asked about Burke's demeanor, Deputy Hillman testified that "[s]he didn't — I didn't notice anything unusual, she at any time appear intoxicated or anything, I think she had something to drink but she was not drunk by any means." This testimony does not contradict Deputy Adams' testimony that Burke appeared "very afraid and started . . . crying" when she talked about her relationship with R.D. Both officers testified as to their observations based on the time each spent with Burke. Substantial evidence supports the trial court's factual finding A(8).
Spearman next challenges Finding of Fact A(9) and the first sentence in Finding of Fact A(17):
Based on the information provided by Burke, Deputies Adams and Hillman drove to the Orion Motel to contact the defendant for further investigation.
. . . .
The deputies continued to knock on the door for an estimated 45 seconds to two minutes in an attempt to investigate what was occurring inside the motel room. The deputies continued to hear noise inside the motel room consistent with the destruction of evidence the entire time they knocked on the door.
Spearman contends that the deputies did not contact Spearman for further investigation, but instead contacted him to arrest him for promoting prostitution. The record indicates that the deputies drove to the Orion Motel to confirm that someone named R.D. was registered at the motel. Deputy Adams testified that they brought Burke to the motel to confirm that R.D. was registered there. Substantial evidence supports the factual finding that the deputies drove to the motel with Burke to further investigate Burke's averment that R.D. was registered there and that he was engaged in criminal activity.
According to the trial court's unchallenged factual findings, which we treat as verities, the deputies believed that evidence of drug activity was being destroyed because, immediately after they knocked on the door and identified themselves, they heard sounds of water running, a toilet flushing a couple of times, and the opening and closing of a window. Thus, although the deputies testified that the initial purpose of going to Spearman's room was to arrest him for promoting prostitution, substantial evidence supports the trial court's finding that the deputies also developed a desire to investigate the reasons for the sudden set of sounds that they were hearing from inside the room. Thus, substantial evidence supports factual finding A(9) and A(17).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001).
Spearman next challenges the emphasized portion of Finding of Fact A(19):
The person at the door confirmed that he was R.D. and complied with the request to put his hands on his head. After doing so, the defendant took one to two steps back from the deputies suggesting some type of furtive activity or that he was going to flee. As he did so, both deputies grabbed onto him, turned him around, and placed him in handcuffs.
Spearman's refusal to put his hands behind his back when so directed by the deputies, coupled with his action in taking one or two steps away from the deputies and further into the room, reasonably justified an inference that he might attempt to flee from the deputies in an attempt either to escape, arm himself, or destroy evidence. Moreover, the deputies believed that Spearman had already destroyed evidence of drug activity during the time that they were knocking on the motel room door. The plain and ordinary meaning of "furtive" is something "done by stealth . . . expressive of stealth . . . obtained underhandedly . . . given to stealing." Webster's Third New International Dictionary 924 (1993). Given that the deputies had reason to believe that Spearman had already sought to furtively destroy evidence when he moved away from them, against their order to the contrary, it was reasonable for them to be concerned that he might resume such behavior. Substantial evidence supports the challenged finding.
Spearman challenges other factual findings that are of no consequence to our decision in this case. Thus, we need not resolve those challenges.
III
Spearman next contends that the evidence obtained after his arrest should have been suppressed because the deputies did not have probable cause to arrest him.
"A trial court's legal conclusion of whether evidence meets the probable cause standard is reviewed de novo." In re Det. of Petersen, 145 Wn.2d 789, 799, 42 P.3d 952, (2002).
It appears that our Supreme Court has applied a de novo standard regarding a trial court's conclusion of law regarding probable cause as compared to review of whether a magistrate abuses his or her discretion in determining whether probable cause supports a search warrant. See State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003); State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). The parties agree that the standard of review in the present case is de novo.
Whether the deputies had probable cause to authorize the arrest depended in substantial degree upon the reliability of the information provided by Burke. When information establishing probable cause to justify a warrantless arrest is supplied by an informant, the requirements of the Aguilar-Spinelli test must be met.
The test was derived from Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). For the purpose of Fourth Amendment analysis, Aguilar and Spinelli have been abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). However, Washington courts continue to apply the Augilar-Spinelli test to Washington Constitution article I, section 7 inquiries. State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984).
Under the first or "basis of knowledge" prong of the Aguilar-Spinelli test, facts must be revealed which permit the judicial officer to determine whether the informant had a basis for his allegation that a certain person had committed a crime. . . . Under the second or "veracity" prong of the Aguilar-Spinelli test, facts must be presented to determine either the inherent credibility of the informant or the reliability of his information on that particular occasion.
State v. Helfrich, 33 Wn. App. 338, 341, 656 P.2d 506 (1982); accord State v. Jackson, 102 Wn.2d 432, 435-36, 688 P.2d 136 (1984).
Spearman does not dispute that the State presented sufficient evidence of the basis of Burke's knowledge at the suppression hearing. Rather, Spearman challenges Burke's veracity, contending that she is not a reliable informant.
The "basis of knowledge" prong is satisfied if the informant has personally seen the facts asserted or passed on first-hand information. Jackson, 102 Wn.2d at 437. It is undisputed that Burke based her assertions of Spearman's criminal acts on Burke's first-hand knowledge.
The veracity prong of the Aguilar-Spinelli test may be satisfied in either of two ways: (1) the credibility of the informant may be established; or (2) even if nothing is known about the
informant, the facts and circumstances under which the information was furnished may reasonably support an inference that the informant is telling the truth.
State v. Lair, 95 Wn.2d 706, 709-10, 630 P.2d 427 (1981) (citations omitted). The State concedes that Burke did not have an established track record as an informant by which her credibility could be determined. However, the State contends that the facts and circumstances under which she provided the information about Spearman reasonably supported the inference that she was telling the truth. We agree.
"The fact that an informant is named is . . . relevant to a finding of veracity." State v. O'Connor, 39 Wn. App. 113, 120, 692 P.2d 208 (1984). So, too, is the informant's making a statement against penal interest. O'Connor, 39 Wn. App. at 120. "Also relevant to [the informant's] veracity is the fact that his statements were made while he was under arrest." O'Connor, 39 Wn. App. at 121. The amount and kind of detailed information given by an informant may also enhance the informant's reliability. O'Connor, 39 Wn. App. at 122.
Spearman contends that Burke should be considered to be a citizen informant because her own criminal activity gave her a motive to inculpate someone else and thus reduce or escape punishment. However, no rule states that an informant with a criminal conviction or who is suspected of criminal activity cannot be considered to be a citizen informant, rather than a criminal or professional informant, for the purposes of evaluating reliability. State v. Chenoweth, 127 Wn. App. 444, 454, 111 P.3d 1217 (2005), aff'd, 160 Wn.2d 454, 158 P.3d 595 (2007).
In fact, as stated in [State v.]Northness, "the fact that an identified eyewitness informant may also be under suspicion — in this case because of her initial contact — has been held not to vitiate the inference of reliability raised by the detailed nature of the information and the disclosure of the informant's identity." 20 Wn. App. [551, 558], 582 P.2d 546 [1978] (citing United States v. Banks, 539 F.2d 14, 17 (9th Cir. 1976) (fact that named, untested, non-professional informer was under investigation based on suspicion of being involved in drug traffic was immaterial to question of reliability of informant where he voluntarily provided detailed eyewitness report of defendant's drug dealing); United States v. Darensbourg, 520 F.2d 985, 988 (5th Cir. 1975) (affidavit providing name and address of 15-year-old informant and detailed information about robbery evidence sufficient to demonstrate reliability); United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977) (no need to show past reliability where informant is in fact a participant in the very crime at issue)).
Chenoweth, 127 Wn. App. at 454. Moreover, the reliability attached to admissions against penal interest is even greater in postarrest situations because the arrestee admitting the crime risks disfavor with the prosecution if the information provided is determined to be untruthful. O'Connor, 39 Wn. App. at 121.
To support the contention that Burke was an unreliable informant, Spearman cites to State v. Duncan, 81 Wn. App. 70, 72-73, 912 P.2d 1090 (1996), where the informant was the defendant's girlfriend who used a false name when contacting the police to report that her boyfriend stored marijuana in a storage unit. The police did not seek to verify her identity. We held that the girlfriend's veracity was not established. Duncan, 81 Wn. App. at 77. However, Duncan is distinguishable from the present case in which the deputies had much more information about Burke than just an unconfirmed name.
The deputies confirmed Burke's name when they discovered her outstanding warrant and her past arrests for prostitution. The deputies had witnessed her in the act of prostitution. She was under arrest when she admitted that she was a drug addict and a prostitute. She explained that she gave her earnings to R.D., who, in return, gave her a place to stay and crack cocaine. She said that she was staying with R.D. at the Orion, where he cooked and dealt crack cocaine out of his room. She appeared afraid and began to cry when explaining to the deputies how R.D. hit and threatened her if she did not prostitute herself. While she was under arrest, Burke accompanied the deputies to the motel, identified R.D.'s motel room, and telephoned him to confirm his presence in the room before the deputies knocked on his door.
The veracity requirement was satisfied. Both prongs of the Aguilar-Spinelli test were satisfied. The deputies had probable cause to arrest Spearman.
Spearmen also contends that probable cause was not established because the deputies only corroborated innocuous facts, such as the location of the motel room or the fact that Spearman was registered there. Where one or both of the Aguilar-Spinelli prongs are not satisfied, probable cause may still be established if independent police investigation corroborates the tip with regard to suspicious activity. Merely verifying "innocuous details" should not suffice to remedy a deficiency in either prong of the Aguilar-Spinelli test. Jackson, 102 Wn.2d at 438. However, "although corroboration may be a factor in the veracity determination, Washington courts have never considered it a prerequisite to a reasonable inference of truthfulness." O'Connor, 39 Wn. App. at 120. Because neither prong of the Augilar-Spinelli test was deficient, the question of whether the corroborated facts were innocuous is not at issue.
Nevertheless, even when probable cause exists, an arrest may still be unlawful. Absent consent or exigent circumstances, article I, section 7 of the Washington Constitution prohibits the warrantless entry into a home in order to effectuate a felony arrest even when probable cause exists. State v. Bessette, 105 Wn. App. 793, 797, 21 P.3d 318 (2001). However, the destruction of evidence provides such an exigent circumstance. State v. Wolters, 133 Wn. App. 297, 302, 135 P.3d 562 (2006) (citing State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986)). The deputies' entry into the room to effectuate Spearman's arrest was thus justified.
The trial court concluded that such exigent circumstances existed; this conclusion was not addressed in Spearman's briefing on appeal.
IV
Spearman also submitted a statement of additional grounds for review. In his first additional ground, Spearman claims that a district court judge found that there was no probable cause to arrest him on the drug possession charge and that this finding precluded his prosecution in superior court. We disagree.
On December 19, 2006, Spearman appeared at a preliminary probable cause hearing in district court to determine whether he could be detained in jail "for investigation of promoting prostitution and violation of the Controlled Substances Act," as pronounced by the district court judge. The State requested that the court only find probable cause to hold Spearman on the charge of promoting prostitution. The district court found that probable cause existed and set bail. The district court also stated that "I'll also find probable cause on — well, I won't. I thought that on the paraphernalia, but the paraphernalia is not described so I would not be able to do that." Nothing more was said as to the controlled substance charge. The next day, the State filed an information charging Spearman with promoting prostitution and possession of a controlled substance.
Spearman relies on CrRLJ 3.2.1(g)(5), which states that "[i]f a preliminary hearing on the felony complaint is held and the court finds that probable cause does not exist, the charge shall be dismissed, and may be refiled only if a motion to set aside the finding is granted by the superior court."
Spearman confuses his preliminary appearance on December 19, 2006, with a preliminary hearing on a felony complaint. See CrRLJ 3.2.1(d) (preliminary appearance); CrRLJ 3.2.1(g) (preliminary hearing on felony complaint). Nothing in the record supports Spearman's contention that a felony complaint had been filed prior to Spearman's December 19 appearance. Thus, his claim fails.
In his second additional ground, Spearman alleges vindictive prosecution, claiming that the State amended the controlled substance charge to allege that he possessed the drugs with the intent to manufacture or distribute them after he refused to plead guilty to one count of possession in exchange for dismissal of the promoting prostitution allegation.
Prosecutorial vindictiveness occurs when "the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights." Thus, "a prosecutorial action is `vindictive' only if designed to penalize a defendant for invoking legally protected rights."
There are two kinds of prosecutorial vindictiveness: actual vindictiveness and a presumption of vindictiveness. . . . A presumption of vindictiveness arises when a defendant can prove that "all of the circumstances, when taken together, support a realistic likelihood of vindictiveness."
State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13, (2006) (citations omitted) (quoting United States v. Meyer, 810 F.2d 1242, 1245-46 (D.C. Cir. 1987)). The filing of additional charges after a defendant refuses to plead guilty does not by itself give rise to a presumption of vindictiveness. Korum, 157 Wn.2d at 630 (holding that the filing of additional charges after a defendant withdrew his guilty plea, without additional facts, did not raise a presumption of vindictiveness). There was no error.
Affirmed.