State v. Barr, No. 58121-0-I (Wash. App. 10/8/2007)
| Decision Date | 08 October 2007 |
| Docket Number | No. 58121-0-I.,58121-0-I. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. GEORGE SILCOTT BARR, IV, Appellant. |
Appeal from Skagit Superior Court. Docket No: 05-1-00374-9. Judgment or order under review. Date filed: 03/17/2006. Judge signing: Honorable Susan K Cook.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA, 98122.
David Bruce Koch, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Harlan R Dorfman, Attorney at Law, Po Box 42601, Rpo Columbia Sq, New Westminster, BC, V3M 6L7.
George Silcott Iv Barr — Info Only (Appearing Pro Se), 88 Willow Ln, Mount Vernon, WA, 98273.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA, 98273-3867.
Melissa Walker Sullivan, Attorney at Law, 605 S 3rd St, Mount Vernon, WA, 98273-3867.
After a state trooper stopped a car under suspicious circumstances, George Barr was charged with possession of methamphetamine, possession of marijuana, first degree unlawful possession of a firearm, and witness tampering. The pat-down search for weapons was valid, and the trial court did not err in admitting the methamphetamine and marijuana discovered in the search. Barr failed to show that letters he sent to another inmate should have been excluded. But Barr's inculpatory statement regarding possession of the gun was the result of improper interrogation and should have been suppressed. We affirm Barr's convictions of possession of methamphetamine, possession of marijuana, and witness tampering. We reverse the conviction of first degree unlawful possession of a firearm and remand for a new trial.
At about 2:00 a.m. on May 16, 2005, Washington State Patrol Trooper Thomas Arnold was on duty when he saw a car being driven with no headlights on and the brake lights flashing off and on. There were four people in the car, and one of the rear passengers made furtive movements as Trooper Arnold approached. Trooper Arnold saw that the steering column of the car was broken open, and the driver appeared to be extremely nervous.
At one point, Trooper Arnold performed a pat-down search for weapons on George Barr, the front seat passenger. Barr had a 6 inch long stuffed bear hanging around his neck, and Trooper Arnold squeezed it, feeling a hard object inside. Trooper Arnold thought that the hard object could be a knife. Barr said, "That's my marijuana." Trooper Arnold opened the bear and looked inside. He saw plastic baggies containing what appeared to be marijuana and methamphetamine, and a small glass pipe. He then closed the bear, arrested Barr, and placed Barr inside the patrol car.
During a search of the car incident to arrest, Trooper Arnold found a gun under the front passenger seat. Trooper Arnold asked Barr who the gun belonged to, and Barr said that he did not know anything about a gun. Trooper Arnold responded, "well, that's okay, because I placed it in a plastic baggy for fingerprints later." Trooper Arnold then went back to the car to arrange for towing. Sometime later, Trooper Arnold got into the front seat of the patrol car and began writing citations. Barr said,
While he was in jail, Barr wrote two letters to Sarah Wyatt, another inmate and potential witness. Jail officials confiscated the letters because they violated jail policy prohibiting inmate-to-inmate correspondence. The letters contained statements regarding what Barr wanted Wyatt to say when she testified at his trial.
Barr moved pretrial to suppress all evidence obtained after his pat-down search and arrest, and the letters he sent to Wyatt. After hearing argument, the trial court ruled that looking inside the bear did not exceed the scope of the pat-down search because Trooper Arnold felt a hard object that could have been a knife. The court also ruled that Barr's statement regarding the gun was voluntary, not the product of interrogation. Finally, the court ruled that the letters were admissible because the Washington Administrative Code (WAC) section Barr referred to had been repealed.
Barr appeals.
Barr contends that the trial court erred in admitting the methamphetamine Trooper Arnold found when he looked inside the bear. Barr argues that the officer exceeded the acceptable scope of the pat-down search because he looked inside the bear based on probable cause to arrest Barr for possession of marijuana. We disagree.
In a challenge to a trial court's ruling on a motion to suppress evidence, we review the findings of fact for substantial supporting evidence and conclusions of law de novo.1
By definition, a stop according to Terry v. Ohio2 is a brief, warrantless investigative stop or seizure. "In the context of an admittedly valid stop, any reasonable basis supporting an inference that the investigatee . . . is armed will justify a protective search for weapons."3 Although an individual's freedom may be curtailed in order to effectuate the search, the purpose of the stop is to allow police to determine whether criminal activity is actually occurring. If police find no such activity, the assumption is that the individual will be free to leave. Because a Terry stop is by nature transitory, the scope of the search for weapons must be sufficient to assure the officer's safety,4 while at the same time being limited to its protective purpose.5 A search for weapons may extend to the area within the suspect's immediate control6 so that, if he is ultimately released, he cannot at that point obtain and use a weapon.
Barr argues that Trooper Arnold believed Barr's statement that the bear contained marijuana and had no further concerns about a weapon at that point, so that looking in the bear exceeded the scope of the Terry search for weapons. Barr contends that Trooper Arnold had probable cause and should have arrested him, whereupon the officer could legally have conducted a search incident to arrest and discovered the methamphetamine. Barr cites State v. O'Neill,7 where an officer approached a car under suspicious circumstances and saw drug paraphernalia on the car seat when the driver got out of the car.8 The O'Neill court rejected the State's argument that a search of the car was valid as incident to probable cause to arrest, even though the search preceded the arrest. The court stated that 9 But no weapon was involved in O'Neill, and the opinion specifically states that "[t]his holding does not affect the validity of the limited pat-down search exception permissible under Terry."10 Because O'Neill excludes Terry weapons searches, it is not controlling in this case.
Even though Barr told Trooper Arnold that there was marijuana in the bear, this did not alleviate the suspicion that there was also a weapon. Trooper Arnold felt a hard object when he squeezed the bear, and the trial court found that it "clearly could have been a weapon." Trooper Arnold thought that it was possibly a knife or other similar weapon. The fact that there may have been probable cause to arrest Barr for possession of marijuana did not preclude Trooper Arnold from extending the Terry search far enough to discover whether the hard object he felt inside the bear was in fact a weapon. Trooper Arnold looked inside but did not remove anything at that point; rather, he determined that the hard object was not a weapon and arrested Barr for possession of controlled substances. This procedure did not violate Barr's rights under Terry.
Barr next contends that the trial court erred in admitting his statement that his fingerprints were on the gun. He argues that the statement was the result of Trooper Arnold's comment that he would fingerprint the gun, which constituted the functional equivalent of custodial interrogation.
Miranda v. Arizona11 protects a suspect's Fifth Amendment right against self-incrimination by assuring that any statements he makes to government agents follow a voluntary, knowing, and intelligent waiver.12 Under Miranda, a police officer must inform a suspect in custody of the rights to remain silent, to an attorney, and of the fact that any statements he makes may be used against him.13 "[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent."14 To violate Miranda, custodial interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself."15 Such interrogation includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."16
17
It is undisputed that Barr was in custody, and that Trooper Arnold did not inform him of his Miranda rights. As a result, any statements Barr made in response to interrogation were presumed to be inadmissible. Barr argues that Trooper Arnold's comment that "well, that's okay, because I placed it [the gun] in a plastic baggy for fingerprints later" constituted the functional equivalent of interrogation so that the trial court should have excluded his inculpatory statement. Indeed, the trooper acknowledged at trial that he made that comment to Barr "to put it in his mind, just to give him something to...
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