In re Nichols

• Decision Date: 20 July 2009
• Docket Number: No. 59750-7-I.,59750-7-I.
• Citation: 211 P.3d 462,151 Wn. App. 262
• Court: Washington Court of Appeals
• Parties: In re Personal Restraint of Glenn NICHOLS, Petitioner.

211 P.3d 462

151 Wn. App. 262

In re Personal Restraint of Glenn NICHOLS, Petitioner.

No. 59750-7-I.

Court of Appeals of Washington, Division 1.

July 20, 2009.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

Deborah Dwyer, Daniel Kalish, King County Prosecutor's Office/Appellate Unit, Seattle, WA, for Respondent.

BECKER, J.

¶ 1 With information obtained from their inspection of a motel registry, police identified petitioner Glenn Nichols as the suspect in a drug dealing operation, arrested him on a warrant for driving with a suspended license, and found the drugs that led to his convictions. In this personal restraint petition, Nichols argues for the first time that police violated his right under the State Constitution to be free from intrusion into his private affairs when they viewed the motel registry without a warrant. He contends his convictions must be vacated and his case remanded with instructions either to suppress the evidence flowing from the information obtained from the motel clerk, or to hold a new suppression hearing. Our Supreme Court recently held that a motel registry is a private affair. But trial counsel did not move to suppress on this basis and the failure to do so was not, at the time, ineffective assistance of counsel. Nichols does not explain how he is now entitled to argue for suppression as a remedy. The petition is denied.

FACTS

¶ 2 One afternoon in February 2004, Seattle police officers sent a confidential informant to make a controlled buy of cocaine from Toreka Ativalu. When the informant went to Ativalu's house, she said she was out of drugs, but she planned to meet her supplier at a motel soon. The informant went to the motel with Ativalu and a man named Robert. Ativalu asked Robert to call the supplier because she could not remember his room number. After calling, Robert said the supplier was in room 56. The informant saw Ativalu go into and come out of room 56. When she returned, she had several small pieces of crack cocaine. She gave some to the informant, and the informant gave it to a detective.

¶ 3 Later that afternoon, police officers went to the motel and learned from the desk clerk that the name of the person registered in room 56 was Glenn Nichols. The clerk showed the officers a copy of Nichols' identification card. They checked Nichols' name for warrants and discovered that his driver's license was suspended.

¶ 4 A short time later, Nichols drove into the motel parking lot and the officers recognized him from the picture on his identification. As Nichols got out of his car, the officers told him they wanted to talk to him because his license was suspended. Nichols tried to get back into his car. The officers arrested him and found a baggie containing rocks of cocaine, another baggie containing marijuana, and $460 in cash, including $10 of the buy money used by the informant.

¶ 5 Nichols was charged with one count of unlawful possession of cocaine with intent to distribute and one count of unlawful possession of marijuana. Before trial, he moved to suppress the evidence found on him. Nichols' motion to suppress is not in the record before this court, but the trial court's order denying the motion to suppress indicates that the basis for the motion was a recent Supreme Court decision declaring RCW 46.20.289 (Driving While License Suspended in the Third Degree) to be unconstitutional. See City of Redmond v. Moore, 151 Wash.2d 664, 91 P.3d 875 (2004). The trial court ruled that the officers had probable cause to arrest based on the statute because at the time of the arrest the statute was presumptively valid.¹ Nichols was found guilty as charged on January 23, 2005.²

¶ 6 The following month, the Court of Appeals decided State v. Jorden, 126 Wash.App. 70, 107 P.3d 130 (2005). Jorden involved a program offered to motels and hotels by the Pierce County Sheriff's Department. The program encouraged officers to review guest registries randomly and to run warrant checks on guests registered at hotels and motels with reputations for frequent criminal activity. One such random warrant check revealed that motel guest Timothy Jorden had two outstanding felony warrants. Officers went to Jorden's room and found him in proximity to cocaine and drug paraphernalia. Charged with unlawful possession of a controlled substance, Jorden moved to suppress the evidence of the drugs and paraphernalia. He argued that the search of the motel registry violated his privacy rights under the federal and state constitutions. The trial court denied the motion, the evidence was admitted, and Jorden was convicted. Jorden's conviction was affirmed. State v. Jorden, 126 Wash.App. 70, 75, 107 P.3d 130 (2005). He petitioned for review to the Supreme Court.

¶ 7 Meanwhile, on March 31, 2005, Nichols appealed his conviction. He did not raise any issue pertaining to the police inspection of the motel registry. He argued that his rights were violated when the court ordered him to provide a biological sample for DNA identification. On January 26, 2006, this court stayed his appeal pending the Supreme Court's anticipated decision on the DNA issue.

¶ 8 On March 29, 2007, two years after filing his appeal, Nichols filed this personal restraint petition asking for a new trial, primarily on the ground that the officers conducted an unlawful search when they viewed the motel registry. Review of the petition was stayed pending a decision in Nichols' direct appeal.

¶ 9 On April 26, 2007, the Supreme Court reversed the Court of Appeals decision in Jorden and held that the police practice of randomly checking names in a motel registry for outstanding warrants violated article 1, § 7 of Washington's Constitution. State v. Jorden, 160 Wash.2d 121, 130, 156 P.3d 893 (2007).

¶ 10 By June 2007, the Supreme Court had decided the DNA issue adversely to Nichols' claim in his direct appeal. State v. Surge, 160 Wash.2d 65, 156 P.3d 208 (2007). This court lifted the stay on Nichols' appeal and affirmed his conviction, with the mandate issuing on January 18, 2008.

¶ 11 On February 11, 2008, we lifted the stay on Nichols' personal restraint petition. The State's initial response recommended that the petition be granted. The State cited the Supreme Court's recent decision in Jorden and agreed with Nichols that the inspection of his motel registration was a warrantless search of a private affair. Conceding that no exception to the warrant requirement applied, the State accepted that the evidence obtained from his detention and arrest should have been suppressed.

¶ 12 We appointed counsel for Nichols and asked the parties to brief whether this type of suppression issue can be raised for the first time in a personal restraint proceeding in light of In re Pers. Restraint of Rountree, 35 Wash.App. 557, 560, 668 P.2d 1292 (1983). In Rountree, the petitioner raised a Fourth Amendment suppression issue on direct appeal, abandoned his appeal, and then attempted to raise the same issue in a personal restraint petition. His petition was dismissed on the ground that he had already had a full and fair opportunity to litigate his Fourth Amendment claim at trial and on direct appeal. In so ruling, the Rountree court followed Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

¶ 13 In Stone, the Supreme Court weighed the utility of the exclusionary rule against the costs of extending the rule to collateral review and found the costs to be too severe.

The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.

Stone, 428 U.S. at 490, 96 S.Ct. 3037. Where a State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner

may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force.

Stone, 428 U.S. at 494-95, 96 S.Ct. 3037.

¶ 14 The State now argues, citing Rountree and Stone, that Nichols waived the suppression issue because he did not raise it in the trial court or on direct appeal.

¶ 15 We agree. This conclusion, while consistent with Rountree, is directly compelled by cases holding that a defendant who does not move in the trial court to suppress improperly obtained evidence waives the right to raise the issue on direct appeal. State v. Baxter, 68 Wash.2d 416, 423, 413 P.2d 638 (1966); State v. Mierz, 127 Wash.2d 460, 468, 901 P.2d 286 (1995). If the issue is waived and cannot be raised on direct appeal, then it cannot be raised in a personal restraint petition either.

¶ 16 Nichols argues that he should be allowed to raise the motel registry issue now because, unlike in Rountree, his claim is based on our state Constitution, article 1, § 7, under which there are different justifications for the exclusionary rule. Nichols emphasizes what the Court stated when declaring a stop and identify statute unconstitutional in State v. White, 97 Wash.2d 92, 110, 640 P.2d 1061 (1982): "The important place of the right to privacy in Const. art. 1, § 7 seems to us to require that whenever the right is unreasonably violated, the remedy must follow." But in White, the defendant moved to suppress in the trial court. The Supreme Court affirmed the trial court's order granting the motion to suppress. The Court's comment that the remedy of suppression "must follow" any violation of article 1, § 7 was in the context of explaining why the court would not adopt a good faith exception where police acted in accordance with a statute. White, 97 Wash.2d at 110, 640 P.2d 1061...