State v. Contreras

• Decision Date: 04 September 1998
• Docket Number: No. 21591-8-II,21591-8-II
• Citation: 966 P.2d 915,92 Wn.App. 307
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent v. Rene CONTRERAS, Appellant.

Page 307

92 Wn.App. 307

966 P.2d 915

STATE of Washington, Respondent v. Rene CONTRERAS, Appellant.

No. 21591-8-II.

Court of Appeals of Washington Division 2.

Sept. 4, 1998.

Sheri Arnold, Tacoma, for Appellant.

Kathleen Proctor, Tacoma, for Respondent.

HUNT, Judge.

Rene Contreras appeals his conviction for possession of a controlled substance. He was originally arrested for obstructing a law enforcement officer when Contreras refused to cooperate with a vehicle prowl investigation. During a search incident to arrest, officers discovered a baggy of methamphetamine in Contreras' pocket. He argues on appeal that (1) his initial seizure and arrest were invalid; (2) his trial counsel's representation was defective because (a) he did not move to suppress the methamphetamine as fruit of an illegal seizure and/or arrest and (b) the trial court would likely have suppressed the methamphetamine and dismissed the charges. We affirm.

FACTS

Shortly after noon on October 15, 1996, police received a call about a possible vehicle prowl at 6303 East "F" Street in Tacoma, where a male was prowling around a white vehicle. Within five minutes of receiving the dispatch, Officer Michael Scarfo responded; he arrived at the scene and observed Contreras seated behind the steering wheel of a white car parked in front of 6303 East "F" Street.

Scarfo exited his vehicle and ordered Contreras to raise his hands. Contreras did not raise his hands; instead, he just smiled. Scarfo again ordered Contreras to raise his hands, but he did not. Contreras seemed "out of it," again smiled at Scarfo, and began moving his hands back and forth around the dashboard, "like he was going to do something with them." Scarfo then pulled his gun, pointed it at Contreras, and again ordered him to raise his hands. Contreras continued to move his hands around the dashboard.

Officer Gregory Wolfe arrived and approached the white vehicle from behind. Scarfo opened the driver's side door and ordered Contreras to exit the car, but Contreras did not move. The officers pulled Contreras out of the vehicle and pushed him up against the car with his hands on the roof. Contreras did not respond to any of the officers' questions about his identity or purpose for being in the vehicle. While the officers conducted a weapons patdown, Contreras took his hands off the roof and moved them down by his chest. The officers then handcuffed Contreras and placed him in the patrol car.

With Contreras in the patrol car, the officers continued to investigate the possible vehicle prowl. Wolfe asked Contreras whether he owned the white car or had permission to be inside it. Contreras refused to answer or to disclose his name or other information. Wolfe told Contreras he could be arrested if he did not provide information about who he was or why he was in the car. Contreras then told Wolfe his name was "James." Scarfo did not smell any intoxicants on Contreras, but he noticed that Contreras appeared to be under the influence of a controlled substance.

Meanwhile, the officers inspected the white car for evidence of forced entry but found none. On the front passenger seat they discovered a paper bag containing miscellaneous items, including a wallet with the identification of a "James Rideout."

The officers determined the white car was registered to a Ronald Sigafoos, who lived at 6307 East "F" Street, but they were unable to contact him. The neighbor who had called the police about the vehicle prowl told the officers on the scene that he had seen a male ring the doorbell of 6307 East "F" Street, receive no answer, walk to the white car, try to open the doors, and then get in through the driver's open door.

The officers arrested Contreras for obstructing a law enforcement officer and took him to the station for booking. At the station, Contreras was uncooperative and refused to talk to police. During the booking search, the booking officer found in Contreras' jacket pocket a baggy containing methamphetamine.

The State charged Contreras with unlawful possession of a controlled substance, RCW 69.50.401(d). At trial, Contreras testified that he had been drinking the night before, but could not remember how he had gotten to the area, how he had gotten into the car, or what had happened with the police; and he did not know a James Rideout. The jury convicted Contreras as charged.

ANALYSIS

A. Constitutional Claims Not Raised Below

Contreras' attorney neither challenged Contreras' seizure and arrest nor moved to suppress the methamphetamine. We do not review on appeal an alleged error not raised at trial unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 686-87, 757 P.2d 492 (1988). An appellant must show actual prejudice in order to establish that the error is "manifest." State v. Lynn, 67 Wash.App. 339, 346, 835 P.2d 251 (1992).

1. Adequacy of Record

The purposes underlying RAP 2.5(a) were addressed in State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995):

[C]onstitutional errors are treated specially under RAP 2.5(a) because they often result in serious injustice to the accused and may adversely affect public perceptions of the fairness and integrity of judicial proceedings. Scott, 110 Wash.2d at 686-87, 757 P.2d 492. On the other hand, "permitting every possible constitutional error to be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources of prosecutors, public defenders and courts". Lynn, 67 Wash.App. at 344, 835 P.2d 251.

As an exception to the general rule, therefore, RAP 2.5(a)(3) is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify some constitutional issue not raised before the trial court. Rather, the asserted error must be "manifest"i.e., it must be "truly of constitutional magnitude". Scott, 110 Wash.2d at 688, 757 P.2d 492.

Where the alleged constitutional error arises from trial counsel's failure to move to suppress, the defendant "must show the trial court likely would have granted the motion if made. It is not enough that the Defendant allege prejudice actual prejudice must appear in the record." McFarland, 127 Wash.2d at 334, 899 P.2d 1251.

In assessing actual prejudice, the McFarland court noted:

In each case, because no motion to suppress was made, the record does not indicate whether the trial court would have granted the motion. ² Without an affirmative showing of actual prejudice, the asserted error is not "manifest" and thus is not reviewable under RAP 2.5(a)(3).

² Because no motion to suppress was made, there exists no record of the trial court's determination of the issue in either case. We recognize the predicament this causes for McFarland and Fisher: each Defendant must show the motion likely would have been granted based on the record in the trial court, yet the record has not been developed on this matter because the motion was not made. Even a de novo review of the records (which would relieve each Defendant of his burden to show the alleged error was manifest) does not reveal actual prejudice accruing to either Defendant from the asserted constitutional error.

McFarland, 127 Wash.2d at 334, 899 P.2d 1251 (emphasis added).

Here, the State urges us to read the emphasized McFarland language literally, arguing that, where there has been no trial court ruling, an appellate court cannot know what the trial court would have done and, therefore, cannot review the alleged error. But such a narrow reading of McFarland would essentially preclude any review of any alleged error resulting from failure to make any motion or any objection at trial; we could no longer review such errors for the first time on appeal because there would be no record of how the trial court would have ruled. Adopting the State's position would preclude review on a record devoid of a trial court's ruling where no motion or objection was made; such an outcome would directly contravene RAP 2.5 and render the rule essentially meaningless. We therefore decline to adopt such a narrow reading of McFarland.

Instead, we read RAP 2.5 together with McFarland's underlying discussion and other case law concerning appellate review of constitutional issues not raised at trial. We conclude that when an adequate record exists, the appellate court may carry out its long-standing duty to assure constitutionally adequate trials by engaging in review of manifest constitutional errors raised for the first time on appeal. See State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993). ¹

We read McFarland as focusing primarily on the inadequacy of the record on the issue raised for appellate review, not on the lack of a trial court ruling. For example, the McFarland court states: "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest." McFarland, 127 Wash.2d at 333, 899 P.2d 1251 (emphasis added) (citing Riley, 121 Wash.2d at 31, 846 P.2d 1365). Thus, "each Defendant must show the motion likely would have been granted based on the record in the trial court...." McFarland, 127 Wash.2d at 334 n. 2, 899 P.2d 1251. In a footnote, the court noted the facts surrounding McFarland's arrest suggest that a motion, if made, "properly would have been denied." McFarland, 127 Wash.2d at 334 n. 2, 899 P.2d 1251. Thus the McFarland record was inadequate because, not only had there been no motion to suppress, but also the record had not been otherwise developed.

In contrast, here the record is sufficiently developed for us to determine whether a motion to suppress clearly would have been granted or denied; thus we can review the suppression issue, even in the absence of a motion and trial court ruling thereon. ² Accordingly, we look to the facts of Contreras' seizure and arrest to...