State v. Belanger

• Decision Date: 04 September 2019
• Docket Number: No. 51399-4-II,51399-4-II
• Parties: STATE OF WASHINGTON, Respondent, v. JAKE MICHAEL BELANGER, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. JAKE MICHAEL BELANGER, Appellant.

No. 51399-4-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

September 4, 2019

UNPUBLISHED OPINION

SUTTON, J. — Jake M. Belanger was under community custody when law enforcement received information that he had a Department of Corrections (DOC) warrant for failure to report and could be found at a Tacoma park. Following his arrest at the park and subsequent jury trial, Belanger appeals his convictions for two counts of possession of a controlled substance with intent to deliver, each with two firearm enhancements; one count of possession of a controlled substance; and two counts of first degree unlawful possession of a firearm. Belanger argues that (1) the trial court erred when it denied his CrR 3.6 motion to suppress evidence obtained during a warrantless community custody search of his vehicle, (2) the State produced insufficient evidence to prove that he was "armed" for purposes of the firearm enhancements, (3) the trial court abused its discretion by doubling the maximum sentence length for the unlawful possession with intent to deliver controlled substances convictions, and (4) the trial court improperly imposed legal financial obligations (LFOs).

In a statement of additional grounds (SAG), Belanger also asserts that the trial court erred by denying his motion to suppress because the search of his vehicle violated his passenger's third- party privacy interests, and the trial court failed to properly inquire into the reliability of the informant who told law enforcement that Belanger would be at the park. Belanger also asserts that the trial court erred by granting the State's motion for reconsideration of the court's decision to dismiss the firearm sentencing enhancements.

We affirm and remand to the sentencing court to address the LFOs in light of new law.

FACTS

I. BACKGROUND

In November 2016, Belanger was under community custody, and his conditions included no possession of controlled substances, no possession of firearms, and the duty to report to the DOC as directed. On November 7, 2016, Pierce County Deputy Seth Huber received information that Belanger had a DOC warrant for failure to report to DOC and that Belanger could be found near a park in the Proctor area of Tacoma. Deputies Huber and Jason Bray, and Community Custody Officers (CCO) Thomas Grabski and Mike Poston planned to contact Belanger at the park.

As the law enforcement officers approached the park, they confirmed that Belanger was present and proceeded to box in Belanger's vehicle to prevent his escape. Belanger resisted, but the officers ultimately detained Belanger. Deputy Huber searched Belanger's person and discovered methamphetamine, heroin, alprazolam pills, a used glass pipe, and a large sum of cash. Deputy Huber advised Belanger of his constitutional rights and arrested Belanger.

After the discovery of drugs on Belanger's person, CCO Grabski conducted a search of Belanger's vehicle to verify whether Belanger was complying with the conditions of his community custody. CCO Grabski discovered a safe on the driver's side floorboard containing aloaded .38 handgun; a safe behind the driver's seat containing heroin, methamphetamine, and baggies for packaging; a backpack laying on the rear seat containing a .22 handgun; and ammunition for the handgun was located in a clothin bin.

When questioned about the items discovered in the vehicle, Belanger explained that he had previously been employed but was no longer working and that he "does what it takes to make ends meet," including selling methamphetamine, heroin, and pills to make money. Report of Proceedings (RP) at 548-49. Belanger stated that everything in the vehicle belonged to him, including the firearms, which he used for self-protection and to keep from getting robbed. Belanger acknowledged that it was illegal for him to possess a gun.

The State charged Belanger with three counts of unlawful possession of a controlled substance with intent to deliver, each with two firearm sentencing enhancements. The State also charged Belanger with two counts of first degree unlawful possession of a firearm.

II. CRR 3.6 HEARING

Belanger filed a motion to suppress under CrR 3.6, arguing that the evidence collected as a result of CCO Grabski's search of Belanger's vehicle should be suppressed.

At a hearing on the motion, testimony from CCO Grabski and Deputy Huber was consistent with the above facts. Specifically, CCO Grabski testified as follows. In November 2016, law enforcement received information that Belanger was going to be in the North Proctor area on the evening of November 7, with drugs and likely with a firearm. CCO Grabski learned that Belanger had an active DOC felony warrant and would be driving a white Pontiac Grand Am.

On November 7, CCO Grabski coordinated with other law enforcement officers to arrest Belanger. That day, CCO Grabski saw Belanger driving a white Pontiac Grand Am with a womanin the passenger seat. CCO Grabski's and CCO Poston's vehicles converged on Belanger's vehicle and boxed Belanger in. Belanger put his vehicle in reverse, striking CCO Poston's vehicle, then put his vehicle in drive, striking CCO Grabski's vehicle.

Once Belanger was unable to move his vehicle, CCO Grabski and CCO Poston exited their vehicles and attempted to remove Belanger from his vehicle. Belanger resisted arrest, lunging his hands down towards the floorboard of the vehicle. CCO Grabski explained:

Anytime that you are giving a command to somebody or a directive to, you know, comply, and they are failing to do so and then they are reaching into an unknown area that you can't see is a concern for anybody.

. . . .

I don't think that I was thinking that there was a weapon on the floorboard. I am thinking that I need to get this guy in cuffs. I mean, I'm just controlling hands, controlling the body, getting him into cuffs, and then I can sort out everything else after the fact.

RP at 41. Eventually the officers succeeded in getting Belanger out of the vehicle and into restraints. CCO Grabski described Belanger as non-compliant for "a minute maybe." "[Belanger] kept trying to stand up. He wanted to get away. He wasn't fighting with us, throwing punches at us, or anything crazy like that, but he just did not want to be there. He was trying to . . . get away from there." RP at 42.

The State asked CCO Grabski, "Given your training and experience over the last 15 years, was that an indication that perhaps [Belanger] was in violation of his terms of community custody, the desire to get away?" RP at 44. CCO Grabski replied,

When somebody is trying to get away from a vehicle or tries to distance themselves from a vehicle like that, it usually means there is something in the vehicle, yes. Not always is there something, but odds are.. . . .

[S]omething in violation of the probation, such as a firearm or narcotics or something of that nature.

RP at 44. The officers searched Belanger incident to arrest, which resulted in the discovery of methamphetamines, heroin, and pills. CCO Grabski believed it reasonably likely that additional drugs and/or weapons could be found in Belanger's vehicle.

CCO Grabski explained that he decided to do a DOC compliance check of the vehicle based on the fact that Belanger had controlled substances on his person, as well as Belanger's behavior, resisting arrest, and attempt to distance himself from the vehicle. During his search, CCO Grabski discovered a black safe containing a silver handgun on the driver's side floorboard; a black and gray safe behind the driver's seat containing heroin, methamphetamine, and baggies for packaging; a black backpack laying on the rear seat of the vehicle containing a silver handgun; and ammunition in a clothes bin on the backseat. CCO Grabski could not remember how he opened the safes.

Deputy Huber testified that around November 7, 2016, he was informed that he might find Belanger near a park in Tacoma where Belanger often sold drugs and that Belanger would likely be armed with a firearm. As Deputy Huber approached Belanger's vehicle at the park, he witnessed Belanger reaching around inside of the car. When Belanger refused to comply with commands, Deputy Huber used his electronic control device. Deputy Huber explained that he chose to use his electronic control device because "[f]irst off was the information that Mr. Belanger may be armed. He was a violent felon. He was wanted on a felony warrant that cautioned him as a violent offender. Secondly, he was reaching down towards the floorboard." RP at 97. Belangercontinued to resist arrest despite Deputy Huber using the electronic control device three times. Eventually, CCO Poston and CCO Grabski removed Belanger from the vehicle, but Belanger continued to resist and attempted to stand up for several minutes. Deputy Heber testified that "[e]ven once [Belanger] was secured in [hand]cuffs, he continued to twist his body, stand up, look for avenues of escape." RP at 100-01.

After the drugs and firearms were confiscated from Belanger's vehicle, Deputy Huber questioned Belanger about the items. Belanger told Deputy Huber that he sold drugs to make ends meet and that he used the guns for "self-protection and to keep him[self] from being robbed." RP at 110-11.

The trial court ruled that given the drugs found on Belanger's person and his behavior reaching around the vehicle before arrest, CCO Grabski had a reasonable suspicion that there may be additional drugs or weapons in the vehicle in violation of Belanger's community custody conditions. Consequently, the trial court denied Belanger's CrR 3.6 motion to suppress.

III. MOTION TO DISMISS & RECONSIDERATION

Following the close of evidence at trial, Belanger moved to dismiss the firearm sentencing enhancements. Relying on State v. Gurske¹ for support, Belanger argued that the State produced insufficient evidence that Belanger was armed.. The trial court granted Belanger's motion to...