State v. Burghard, No. 21753-1-III (WA 3/3/2005)
| Decision Date | 03 March 2005 |
| Docket Number | No. 21753-1-III,21753-1-III |
| Parties | STATE OF WASHINGTON, Respondent, v. RUSSELL LEE BURGHARD, Appellant. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Grant County. Docket No: 01-1-00638-2. Judgment or order under review. Date filed: 01/14/2003. Judge signing: Hon. John Michael Antosz.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, PO Box 37, Ephrata, WA 98823-0037.
Russell Burghard was convicted of unlawful possession of a firearm, possession of an unlawful firearm, possession of methamphetamine, and manufacturing methamphetamine. On appeal, Mr. Burghard argues: (1) the deputies did not have probable cause to arrest him; (2) he did not abandon the property he threw from his truck into a field; (3) items seized from his vehicle were not admissible under any exception to the warrant requirement; (4) the State failed to show the chain of custody for the methamphetamine found in his truck; (5) the State failed to show he knowingly possessed an unlawful firearm; (6) possession of an unlawful firearm and unlawful possession of a firearm constitute the same criminal conduct under a double jeopardy analysis; (7) there was insufficient evidence to find him guilty of manufacturing methamphetamine; and (8) the prosecutor abused his discretion when he charged Mr. Burghard for manufacturing methamphetamine instead of possession of used drug paraphernalia. We affirm Mr. Burghard's convictions.
On October 6, 2001, Deputies Dan Couture and Gregg Hutchison of the Grant County Sheriff's Office were dispatched to the residence of Joshua Lindstrom to investigate a burglary. Mr. Lindstrom told Deputy Couture that someone had entered his truck, which had been parked inside a metal shed behind his residence, and stole some of his property. Mr. Lindstrom showed the officers a set of footprints that he associated with the burglary. Deputy Couture noted the absence of vehicle tracks leading away from the metal shed. The deputy saw the same footprints outside the metal shed, leading toward the property of Mr. Lindstrom's neighbor, Russell Burghard.
The two deputies went to Mr. Burghard's residence, where they came upon Janelle Craig in the front yard. Ms. Craig took the officers to a shed at the south side of the property.
Deputy Couture saw footprints near the shed that were similar to the footprints on Mr. Lindstrom's property. He could see one set of footprints headed in the direction of the Lindstrom property and another set of footprints returning from the direction of the Lindstrom property. The shed was padlocked. There was no sign of forced entry. The deputies decided to apply for a search warrant. While Deputy Couture applied for a search warrant, Deputy Hutchison returned to his vehicle and positioned the vehicle so that he could watch the shed.
After approximately one hour, Deputy Hutchison saw a white pickup, traveling at a high rate of speed, which turned into Mr. Burghard's driveway. The pickup backed up to the shed. Mr. Burghard exited the pickup and quickly removed several items from the shed. He loaded the items into the pickup bed. He reentered the pickup and drove away from the shed.
Instead of driving the pickup back to the road, Mr. Burghard drove the pickup into an open field. The open field is full of cheat grass and weeds. Mr. Burghard does not own the field. There, he stopped the pickup and began throwing the items from the pickup bed into the weeds. Deputy Hutchison arrived at the scene. From his patrol vehicle, he activated his public address system and directed Mr. Burghard to stop throwing property from the pickup. Mr. Burghard did not comply with this order. Then, Deputy Hutchison exited his vehicle and walked toward Mr. Burghard. He ordered Mr. Burghard to put his hands up and come toward him. Again, Mr. Burghard did not comply. At that point, Deputy Hutchison drew his weapon. He arrested Mr. Burghard and took him into custody. Deputy Hutchison walked toward the pickup. In the pickup bed, he discovered two rifle cases containing a 12-gauge shotgun and a .22 rifle. The shotgun had a barrel less than 18 inches in length. Additionally, he discovered a number of items that he associated with the manufacture of methamphetamine. These items included a propane tank, a white five-gallon plastic bucket containing glassware and coffee filters, and a jar with rubber tubing affixed to it and containing rock salt.
In the weeds near the pickup, Deputy Hutchison located a soft-sided green bag, a plastic container, and a cardboard box. The soft-sided green bag contained a two-burner hot plate. The plastic container contained chemicals and a glass jar containing a white powder. The cardboard box contained a propane tank. Other items found at the scene included containers of Heet, a container of muriatic acid, Morton rock salt, and a thermometer. One of the glass jars had a latent fingerprint. Forensic examiner Robert Johnson identified the fingerprint as belonging to Mr. Burghard. In Deputy Hutchison's experience, all of the items that he discovered in the weeds were associated with the manufacture of methamphetamine.
Deputy Hutchison searched the pickup's interior. He saw a clear plastic baggie containing a white powder in the cover to the fuse box. He placed the white powder in an evidence bag and sealed it. The white powder field tested positive for methamphetamine.
Mr. Burghard was charged with two counts of unlawful possession of a firearm on October 8, 2001. The information was amended to include possession of methamphetamine and manufacturing methamphetamine. The information was subsequently amended again to include possession of a unlawful firearm. Mr. Burghard's motion to suppress the evidence was denied.
At a bench trial in August 2002, Deputy Hutchison identified the evidence bag containing the white powder. During his testimony, Matthew Jorgenson, a forensic scientist, identified the evidence bag containing the white powder. Mr. Burghard was found guilty.
Standard of Review—Suppression Hearing. In reviewing a suppression hearing, an appellate court determines whether substantial evidence supports the court's findings of fact. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Findings of fact that are not assigned error are viewed as verities on appeal. RAP 10.3(g); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Findings are also viewed as verities if `there is substantial evidence to support the findings.' Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993)). `Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.' Hill, 123 Wn.2d at 644 (citing Halstien, 122 Wn.2d at 129). Conclusions of law are reviewed de novo. Mendez, 137 Wn.2d at 214.
Probable Cause to Arrest. Mr. Burghard contends Deputy Hutchison did not have probable cause to arrest him because his conduct did not create a reasonable suspicion of criminal activity. He notes that the unlawful arrest led to the seizure of evidence that was used against him. Warrantless searches and seizures are generally unreasonable. State v. O'Cain, 108 Wn. App. 542, 548, 31 P.3d 733 (2001) (quoting State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)). However, an officer may arrest a suspect without a warrant when he has probable cause to "believe that a person has committed, or is about to commit a felony." State v. McClung, 66 Wn.2d 654, 659, 404 P.2d 460 (1965) (quoting State v. Darst, 65 Wn.2d 808, 811, 399 P.2d 618 (1965)). Probable cause is based upon facts within the knowledge of the arresting officer, that are persuasive enough to convince a judge that a cautious but disinterested man would also believe the arrested person guilty. McClung, 66 Wn.2d at 659 (quoting Darst, 65 Wn.2d at 811). It does not require sufficient evidence `to establish guilt beyond a reasonable doubt.' State v. Neeley, 113 Wn. App. 100, 107, 52 P.3d 539 (2002) (citing State v. Bellows, 72 Wn.2d 264, 266, 432 P.2d 654 (1967)). It is 'grounded on a practical, nontechnical review of the total facts of the case under consideration.' Id. (citing State v. Gillenwater, 96 Wn. App. 667, 671, 980 P.2d 318 (1999)).
In this case, Deputy Hutchison had probable cause to arrest Mr. Burghard for burglary. Circumstantial evidence connected Mr. Burghard to the burglary of the pickup located in the Lindstroms' metal shed. This evidence included the footprints that traveled between the two sheds. From the fact that Mr. Burghard's shed was locked and secured, the deputy could reasonably infer that only Mr. Burghard, and not some unknown person, had access to the shed. Most importantly, Mr. Burghard's actions prior to his arrest were highly suspicious and strongly indicative of criminal conduct. In reviewing the facts of the case, Deputy Hutchison had probable cause to believe that Mr. Burghard had committed a burglary.
Abandonment of Property. Mr. Burghard asserts that the evidence located in the field adjoining his house were not abandoned. Rather, he maintains that he had actual or constructive possession of the property. A defendant does not have any Fourth Amendment rights with regard to abandoned property. Abel v. United States, 362 U.S. 217, 240-41, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). If property is voluntarily abandoned, the police may retrieve it without violating the defendant's Fourth Amendment rights. State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001); State v. Nettles, 70 Wn. App. 706, 708, 855 P.2d 699 (1993); State v. Whitaker, 58 Wn. App. 851, 853, 795 P.2d 182 (19...
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