State v. Armstrong, 37699-1-III

• Court: Court of Appeals of Washington
• Writing for the Court: Staab, J.
• Decision Date: 02 December 2021
• Parties: STATE OF WASHINGTON, Respondent, v. DILLON DWAYNE ARMSTRONG, Appellant.
• Docket Number: 37699-1-III

STATE OF WASHINGTON, Respondent,
v.
DILLON DWAYNE ARMSTRONG, Appellant.

No. 37699-1-III

Court of Appeals of Washington, Division 3

December 2, 2021

UNPUBLISHED OPINION

Staab, J.

Police pulled Dillon Armstrong over for an unsafe lane change that caused the officer to swerve. During the stop, Armstrong displayed signs of being under the influence, but denied drugs were in his car. He eventually admitted that there might be pieces from a broken glass meth pipe near the driver's seat. Although he initially consented to a search of the cab, he denied permission to search the trunk. After he revoked permission to perform any search, officers seized the vehicle and sought a search warrant.

In the warrant affidavit, the officer indicated that Armstrong appeared to be under the influence of drugs, admitted using methamphetamine within the last two or three days, and admitted that there might be a broken meth pipe in the vehicle. A warrant was

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apparently obtained. After cracking open a locked safe in the trunk, officers found 96 grams of methamphetamine.

Through his attorney, Armstrong filed a motion to suppress evidence of the search but only argued that the stop of his vehicle was pretextual. He did not argue that the warrant affidavit failed to establish a nexus to the safe, and he did not request a Franks^[1]hearing to challenge statements made or omitted in the affidavit. During the motion, counsel withdrew the pretext argument and the court found that the affidavit provided probable cause to issue a warrant to search the vehicle.

On appeal Armstrong raises several issues for the first time. First, he argues that the affidavit fails to establish a nexus to the trunk or the safe. In the alternative, he contends that the officers made material omissions in the warrant affidavit by failing to advise the judicial officer that Armstrong told the officers that the pipe was located near the driver's seat. Finally, he asserts that his attorney was ineffective for failing to raise these issues below.

While we have concerns about the integrity of the affidavit and warrant, the record on appeal is insufficient for us to decide these issues on the merits. The search warrant is not part of the record on appeal. Any attempt to decide whether the warrant was overbroad would necessarily require us to make assumptions about the contents of the

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warrant. The issues raised on appeal need to be raised in a personal restraint petition where the defendant can supplement the record.

BACKGROUND

A. Stop^[2]

Around 1 a.m. on September 11, 2019, a deputy for the Whitman County Sheriff's Department stopped Armstrong for making an unsafe lane change in Pullman. During the infraction stop, the deputy observed a passenger in the car with Armstrong. The deputy also noticed that Armstrong kept his hood up and would not make eye contact. Armstrong appeared to be breathing heavily and his pupils were dilated. Armstrong told the deputy that he was coming from Spokane where he had been visiting his sick uncle, and that he was headed to Lewiston. Based on safety concerns the deputy asked Armstrong to step out of his vehicle and walk back to the patrol car while he continued the investigation.

As he was conducting his records check, the deputy continued speaking with Armstrong. The deputy observed that Armstrong was unable to stand still, was speaking at a fast pace, had dilated pupils, pick marks on his face, and was sweating even though the air temperature was approximately 45 to 50 degrees. Based on the deputy's training and experience, he believed Armstrong was exhibiting signs of being under the influence

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of methamphetamine. Upon questioning, Armstrong initially indicated that he had stopped using drugs when his aunt died from drug use but then admitted that he had used methamphetamine as recently as three or four days prior. He denied that there were drugs or pipes in the car. When asked if a narcotics K-9 would alert to his vehicle, Armstrong said it probably would since he had been with his uncle, who was a heavy methamphetamine user. His uncle had been smoking methamphetamine around him earlier that day.

About 10 minutes into the stop, a sergeant arrived and continued to speak with Armstrong while the deputy wrote up a traffic infraction for no proof of insurance. The sergeant asked Armstrong when he had last used methamphetamine, and Armstrong responded a couple of days ago. Armstrong again admitted that he was in the same room as someone smoking methamphetamine earlier that day but stated he did not smoke any himself and did not have anything on himself at the time. The sergeant then asked Armstrong whether he had anything on him and asked whether he had "a pipe or something" in his car. Sergeant Bodycam (Sept. 11, 2019) at 53 sec. to 55 sec. Armstrong again denied having anything in the car but then mentioned the possibility of broken glass from when he had smashed a pipe in his car "[be]cause I was so high." Report of Proceedings (RP) at 68-69; Sergeant Bodycam, supra, at 1 min., 1 sec. to 1 min., 3 sec. The only substance talked about up until this point was methamphetamine.

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The sergeant then asked again if there was methamphetamine in the car, and Armstrong said there was not. When the sergeant asked if he could take a look, Armstrong replied, "If you want[, but t]here's no reason to." RP at 69; Sergeant Bodycam, supra, at 1 min., 9 sec. to 1 min., 13 sec. He then stated that if there were drugs in the vehicle, they would be in the cab and that he would only give permission to search the cab but not the trunk because he had illegal aftermarket car parts in his trunk. The sergeant indicated that he did not care about illegal aftermarket parts and attempted to clarify Armstrong's consent to search. When asked what he meant by the "cab," Armstrong clarified that he meant the front and back seats, but not the trunk. After the sergeant indicated that Armstrong could limit the search, Armstrong said he really did not want anything searched.

After questioning the passenger, the sergeant returned to Armstrong and said, "So, basically there might be some broken glass is all we're gonna find in your car." RP at 73; Sergeant Bodycam, supra, at 4 min., 7 sec. to 4 min., 14 sec. Armstrong answered affirmatively, indicating it was a "weed" pipe. RP at 73; Sergeant Bodycam, supra, at 4 min., 15 sec. to 4 min. 18 sec. This was the first reference to a substance other than methamphetamine in their conversation. After discussing what type of pipe it was, the sergeant asked where the broken pipe was located, and Armstrong stated that he had cleaned up most of the pipe, but there still may be shards near the driver's seat.

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The sergeant then told Armstrong that he was going to seize the car and apply for a search warrant. At this point, the deputy came back out of his patrol car and handed Armstrong a ticket for lack of proof of insurance. He informed Armstrong and his friend that they were free to go. Armstrong then asked the sergeant to grab his house keys and cigarettes out of his car. While the sergeant was retrieving them from the car, as a ruse, he said, "[I] thought you said that was a weed pipe[, that's a] meth pipe that was broken." RP at 77; Sergeant Bodycam, supra, at 7 min., 57 sec. to 8 min., 4 sec. Armstrong said, "No, I know what you are talking about, that was-If there was a meth pipe in there, that was back from when I was using heavily." RP at 77, Sergeant Bodycam, supra, at 8 min. 7 sec. to 8 min. 16 sec. In truth, the sergeant did not find a pipe in the vehicle while retrieving Armstrong's keys. Armstrong and his passenger were told they were free to leave, but the deputy seized the vehicle and sought a search warrant.

After describing the initial stop to the on-call judicial officer, the deputy made the following statement in support of a search warrant:

I spoke to the driver while I was [typing] up these documents and learned that he is coming from Spokane to Lewiston tonight. He was visiting his uncle who's having health problems. He admitted to me that he has used methamphetamine in the last-two to three days and he had been addicted to-methamphetamine in the past.

I noticed that the driver, who is identified as-Dillon D. Armstrong, date of birth 11/09/99, a white male, had dilated pupils, he could not stop shaking while he was talking to me. I also noticed that he had sweat on his head. The current air temperature is approximately 47 degrees. I am in a full police uniform and am not sweating.

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Based on my training and experience all of these things are consistent with someone who is under the influence or has recently used methamphetamine.

I asked-Mr. Armstrong if there was any methamphetamine or any illegal substances in his vehicle. He said no.

At that time, [Sergeant] Jordan arrived and began talking to Mr. Armstrong. During that conversation, Mr. Armstrong told Sgt. Jordan that there was a broken meth pipe inside of the vehicle.

Later on during that conversation Mr. Armstrong changed the story and told Sgt. Jordan that that was actually a marijuana pipe.

A few minutes later Mr. Armstrong again[ ] changed his story and admitted that he had been extremely high from using methamphetamine and had broke[n] the glass meth' pipe in his vehicle, and confirmed that it was a methamphetamine pipe.

Based on my training and experience methamphetamine pipes broken or intact have a white crystal substance on them that is methamphetamine.

Sgt. Jordan at that time asked Mr. Armstrong if he could consent search his vehicle [sic]. Mr. Armstrong told Sgt. Jordan he could search the driver's side area and the back of the vehicle but told Sgt. Jordan he could not search anything else.

Mr. Armstrong later changed that and said he could not search the vehicle.

At that time, based on the

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