State v. Barnes

• Court: Washington Court of Appeals
• Writing for the Court: QUINN-BRINTNALL
• Citation: State v. Barnes, 243 P.3d 165, 158 Wash.App. 602 (Wash. App. 2010)
• Decision Date: 16 November 2010
• Docket Number: No. 39627-1-II.
• Parties: STATE of Washington, Appellant/Cross-Respondent, v. Scott Tyler BARNES, Respondent/Cross-Appellant.

243 P.3d 165

158 Wash.App. 602

STATE of Washington, Appellant/Cross-Respondent,

v.Scott Tyler BARNES, Respondent/Cross-Appellant.

No. 39627-1-II.

Court of Appeals of Washington, Division 2.

Nov. 16, 2010.

Abigail E. Hurd, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Appellant/Cross-Respondent.

John A. Hays, Attorney at Law, Longview, WA, for Respondent/Cross-Appellant.

QUINN-BRINTNALL, J.

¶ 1 A trial court entered an order suppressing evidence found during an automobile search incident to arrest and dismissed the charge of felony harassment without prejudice. The State appeals the trial court's suppression order, arguing (1) evidence of the gun case is admissible underarticle 1, section 7 of the Washington Constitution and Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), or, alternatively; (2) the evidence is admissible under the "open view" exception to the warrant requirement for searches and seizures. The respondent/cross-appellant, Scott Tyler Barnes, argues that the state constitutionand State v. Patton, 167 Wash.2d 379, 219 P.3d 651 (2009), support the trial court's order suppressing the evidence, but he challenges the trial court's factual finding that the gun case was unlocked. In his cross appeal, Barnes argues that the gun was not evidence of the crime and that the trial court erred when it failed to dismiss the felony harassment charge with prejudice.

¶ 2 We hold that substantive evidence supports the trial court's findings of fact and its determination that police had probable cause to arrest Barnes and search his vehicle but that the trial court's findings do not support its conclusions of law. Accordingly, we reverse the trial court's order suppressing the evidence and remand for further proceedings consistent with this opinion.

FACTS

Factual Background

¶ 3 On November 13, 2008, at approximately 12:30 p.m., Barnes entered a Washington Mutual Bank in Washougal, Washington. Apparently unable to receive the assistance with his account from a bank employee that he sought, Barnes became upset and said, "I am sick of everyone wanting to take my money"; "I am sick of having a bank account"; and "I feel like going and getting a gun and shooting everyone." Report of Proceedings (RP) at 4. Barnes left the bank branch soon after.

¶ 4 The bank employee first notified the branch assistant manager about Barnes's threat to get a gun and shoot everyone. Then the employee notified both the police department and the bank's internal security specialist. Washougal Police Patrol Sergeant Kim Yamashita received the bank employee's call and noted Barnes's statements.Yamashita knew Barnes from previous calls involving assaultive behavior.

¶ 5 Two hours later, at approximately 2:30 p.m., Sergeant Yamashita saw Barnes come out of an auto parts store and get into his car, which was parked in a public parking lot about one-half mile from the bank. Yamashita approached Barnes and ordered him to step out of his car. Yamashita then placed Barnes under arrest for felony harassment of the bank employee and put him in the back seat of her patrol vehicle. Yamashita read Barnes his Miranda¹ rights while he was sitting in the patrol car's back seat.

¶ 6 Leaving Barnes in the patrol vehicle, Sergeant Yamashita and another Washougal police officer returned to Barnes's car. Through the car's passenger-side window the two officers saw a gun box and a helmet on the front side passenger seat. Yamashita opened the unlocked passenger-side car door, retrieved the gun box, opened it, and found a Taurus 9 mm handgun inside. Inside the car, the officers also saw a handful of bullets in the front console cup holder, a can of black spray paint, a Bill Clinton face mask, and a t-shirt that read "dead or alive." Clerk's Papers (CP) at 16-17.

Procedural Background

¶ 7 On November 17, 2008, the State charged Barnes with one count of felony harassment for the death threats made to the bank employee and one count of second degree unlawful possession of a firearm. On January 30, 2009, the State filed an amended information, adding one count of second degree attempted assault. The same day, Barnes filed a motion to suppress his statements and all evidence seized during the November 13, 2008 search as evidence seized pursuant to an illegal stop or arrest based on lack of probable cause. On February 18, 2009, the State filed a second amended information adding a firearm enhancement to the second degree attempted assault charge. OnMay 11, 2009, Barnes filed a motion to suppress the evidence seized during the search of his vehicle as evidence seized in violation of Gant.²

¶ 8 On June 29, 2009, the trial court held CrR 3.5 and 3.6 hearings on Barnes's suppression motions. During the CrR 3.5 hearing, Sergeant Yamashita testified that she read Barnes his Miranda rights and that he indicated he understood those rights. Yamashitaalso testified that Barnes was "excitable" but that he spoke freely and made statements "trying to minimize the statement that he made [at the bank]." RP at 33.

¶ 9 During the CrR 3.6 hearing, Barnes called two witnesses: the bank employee and Barnes. First, the bank employee testified about the events of November 13, 2008, as outlined above. The bank employee also testified that there had been past incidents at the bank involving Barnes but that the November 13 incident was the first time involving the police. Second, Barnes testified that Sergeant Yamashita read him his Miranda rights, that he understood them, and that he had made his statements voluntarily. Barnes further testified that he placed the gun case on the passenger seat of his car prior to being arrested.

¶ 10 Following the hearings, the trial court made an oral ruling denying Barnes's motions to dismiss and to suppress based on lack of probable cause. On July 16, 2009, the trial court issued its findings of fact and conclusions of law. The trial court's factual findings included that (1) the officers had probable cause to believe Barnes may have committed felony harassment, (2) Sergeant Yamashita arrested Barnes and physically placed him in the patrol vehicle, and (3) the officers believed they had a right to search Barnes's car because he was under arrest even though he was not in the car. On the issue of whether evidence seized during the officers' warrantless search was admissible under article I, section 7 of the Washington Constitution, the trial court found that (1) the gun case was in open view, (2) there wasno evidence of an obstruction to the officers' ability to get a warrant, and (3) there were no exigent circumstances justifying the warrantless search and seizure of the gun case. The trial court concluded, "The State has not carried its burden that the [gun case] was not unreasonably seized and it is therefore suppressed, mere mobility is not a sufficient showing." CP at 39.

¶ 11 On July 23, the State filed a motion for reconsideration of the CrR 3.6 findings of fact and conclusions of law. The State argued that evidence of the gun was admissible (1) under the inevitable discovery doctrine, ³ (2) under the trial court's requirement of exigent circumstances, or (3) because the officer's actions were reasonable under the Fourth Amendment. During the July 24 hearing on the State's motion, the trial court stated that current Washington law required exigent circumstances to search a vehicle incident to arrest and denied the motion. Last, the trial court granted the State's motion to dismiss the felony harassment charge without prejudice because of the State's belief that proof of the allegations was substantially impaired by the suppression of the gun case evidence.⁴

¶ 12 The State timely appeals the trial court's dismissal of the felony harassment charge, the basis of which was the pretrial order suppressing evidence of the gun case. Barnes cross-appeals, contending that the trial court erred when it did not dismiss the felony harassment charge with prejudice.

DISCUSSION

Suppression of Evidence

¶ 13 To review a trial court's ruling on a suppression motion, we examine whether substantial evidence supports the challenged findings and whether those findings support the trial court's conclusions of law. State v. Ross, 106 Wash.App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wash.2d 1016, 41 P.3d 483 (2002). Substantial evidence is " 'evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.' " State v. Jeannotte, 133 Wash.2d 847, 856, 947 P.2d 1192 (1997) (internalquotation marks omitted) (quoting Olmstead v. Dep't of Health, 61 Wash.App. 888, 893, 812 P.2d 527 (1991)). We do not review credibility determinations on appeal, leaving them to the fact finder. State v. Frazier, 82 Wash.App. 576, 589 n. 13, 918 P.2d 964 (1996) (citing Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wash.2d 364, 369-70, 798 P.2d 799 (1990)). And we treat unchallenged findings as verities on appeal. Ross, 106 Wash.App. at 880, 26 P.3d 298.

¶ 14 Barnes contends that the trial court properly suppressed the evidence under either Gant or under article I, section 7 of the Washington Constitution as interpreted in Patton. Specifically, Barnes first contends that it was not reasonable for the officers to believe that the car contained evidence of the offense of arrest, felony harassment. See Gant, 129 S.Ct. at 1719. Because the gun case evidence was in open view and is relevant to the "true threat" requirement of the felony harassment charge, we disagree.

¶ 15 A person is guilty of harassment if, without lawful authority, the person knowingly threatens to cause bodily injury immediately or in the future to the person threatened or to any other person. RCW 9A.46.020(1)(a)(i). A person who harasses another is guilty of a class C felony if the person harasses another person by threatening to kill the person threatened or any other person. RCW 9A.46.020(2)(b)(ii). InState v. Kilburn, 151 Wash.2d 36, 41, 84 P.3d...