State v. Davis
| Decision Date | 04 August 2020 |
| Docket Number | 36561-1-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. RICO ODELL DAVIS, Appellant. |
UNPUBLISHED OPINION
Rico Davis appeals from a conviction for possession of methamphetamine, arguing that he was improperly subjected to a strip search. We affirm.
After first lying about his identity, Davis was arrested on both a department of corrections (DOC) warrant from a prior drug possession conviction and an arrest warrant for burglary. At the jail, he was subjected to a strip search due to the DOC warrant. Corrections officers observed and removed two plastic "baggies" from Davis' buttocks. They contained methamphetamine.
Spokane police had come in contact with him after a series of 911 calls reported strangers entering an apartment at 3:30 a.m one call reported that the men had been "let inside." The two female occupants, however, who did not speak much English and called upon family members for help wanted the two men removed. One man[1] was arrested on an outstanding warrant. The other man, Davis, identified himself as "Karl Davis" and reported that he had a non-extraditable warrant outstanding. When officers reported that his description and the birthdate he had given did not match those of Karl Davis, Rico Davis became agitated. An officer detained Davis because he did "not want to get in a fight" with him. The officer then patted Davis down and noted a wallet. When asked if his correct name could be found there, Davis admitted his true identity. The wallet was seized and he was subsequently arrested on the noted warrants.
Defense counsel filed a motion to suppress, arguing that Mr. Davis had been wrongly detained at the apartment. After conducting a hearing, Judge Maryann Moreno concluded that police were investigating the crime of trespass and properly detained Mr Davis after he provided a false name. The motion was denied.
Counsel then moved to suppress the methamphetamine, arguing that Mr Davis had been illegally searched at the jail. A second hearing was held before Judge Julie McKay. Judge McKay concluded that (1) the detention was proper due to the false identification, (2) a body cavity search did not occur, and (3) a strip search was properly conducted at the jail due to the DOC warrant for the earlier controlled substance conviction. The motion was denied.
A bench trial on stipulated facts was conducted before the Judge John Cooney. Judge Cooney convicted the defendant as charged and imposed a standard range sentence. Mr. Davis then timely appealed to this court.
A panel considered the case without hearing argument.
The appeal presents several issues related to the two suppression rulings, but we condense the challenges into two. We first address the challenges to the apartment detention. We then consider arguments related to the jail search.
Mr Davis argues that the officer had no reason to detain him once they learned he had been "let inside" and that there was no basis for patting him down. The first argument is answered by the findings from the suppression hearings, while the second contention is waived for failure to present it during the course of those two hearings.[2]
This court typically reviews findings entered following a CrR 3.6 hearing for substantial evidence. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review de novo the conclusions derived from the factual findings. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).[3]
Mr. Davis argues that the police had no basis for continuing an investigation or in discovering his identity once he succeeded in entering the apartment. The record does not support that argument.[4] Washington applies the articulable suspicion standard of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to investigative stops implicating the protections of article I, section 7 of our state constitution. State v. Kennedy, 107 Wn.2d 1, 4-6, 726 P.2d 445 (1986). When an officer can articulate the basis for believing possible criminal activity is afoot, a brief detention to investigate is permissible. Terry, 392 U.S. at 21. The test is whether the facts known to the officer show "a substantial possibility that criminal conduct has occurred or is about to occur." Kennedy, 107 Wn.2d at 6. "When the activity is consistent with criminal activity, although also consistent with noncriminal activity, it may justify a brief detention." Id.
These standards were satisfied here. The officers knew that there was "a substantial possibility that criminal conduct has occurred." Id. Three calls reported that strange men were trying to enter an apartment in the middle of the night. The apartment's occupants let the police in and pointed out the unwanted presence of Mr. Davis. That evidence supported the trial court's finding that the "officers were investigating whether Mr. Davis had committed the crime of trespass." Clerk's Papers (CP) at 24. It was reasonable for officers to determine the identity of the strange man in the apartment, particularly after he gave them a false name.[5] The trial court correctly denied the motion to suppress.
Mr. Davis also argues that he was unlawfully patted down. He waived that argument. The failure to raise an issue in the trial court normally precludes a party from raising the issue on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). One exception to that rule is that a claim of manifest constitutional error can be asserted for the first time on appeal, if the record is adequate to address the issue. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Mr. Davis argues that the record is that the record is sufficient to consider this issue, but it is not. No one asked the officers why a pat down was necessary and the court made no findings related to that topic. There was evidence that Mr. Davis was "agitated" and that the officers feared having to fight with him. A properly noted hearing would have provided the answers to these questions. The wallet also appears to have been seized contemporaneously with the arrest on the outstanding warrants. Again, if a hearing had been held, the court could have made findings to identify whether there was any evidence seized, let alone seized illegally.
In addition to the inadequacy of the record, a second reason exists to decline review of this argument. Mr. Davis twice brought CrR 3.6 motions to suppress evidence without raising the current version of this claim. The decision not to present a third theory of suppression likely was the result of conscious acknowledgement that the facts of the encounter would not justify it. The issue is waived. State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995).
For all of the reasons noted above, the challenges to the suppression rulings are without merit.
Mr Davis challenges the strip search, claiming that it was performed improperly and without authorization, and that the statute is unconstitutional. Although these arguments do address evidence that was used at trial, they, too, are without merit.
Strip searches and body cavities searches are governed by RCW 10.79.060-170. The primary distinction is whether a body cavity (stomach, rectum, or vagina) is involved. RCW 10.79.070(3). Body cavity searches involve touching or probing a body cavity. RCW 10.79.070(2). A body cavity search can only be conducted pursuant to a search warrant. RCW 10.79.080(1). Cavity searches must be conducted by trained health care professionals. RCW 10.79.100(2). A strip search involves the removal or rearrangement of clothing and the display of the genitals, buttocks, anus, female breasts, or undergarments. RCW 10.79.070(1).
Strip searches can only occur when reasonable suspicion exists or when a person has been arrested for specified categories of offenses. RCW 10.79.130. Among those who may be searched is anyone who has been arrested for "an offense involving escape, burglary, or the use of a deadly weapon; or an offense involving possession of a drug or controlled substance." RCW 10.79.130(2)(b), (c). Strip searches shall be conducted in private locations. RCW 10.79.100(3).
Mr. Davis first argues that the search was an improper body cavity search and was not conducted privately. The court's factual findings, all supported by the testimony of a corrections officer, are contrary to those assertions. The search was conducted in a bathroom that was not visible to the public or the general booking area. The door to the room remained open for security purposes. CP at 38. These findings establish that the search was conducted in private in accordance with the requirements of the statute.
The baggies of methamphetamine were observed when Mr. Davis spread his buttocks. The court expressly found, consistent with the testimony of the corrections officer, that the baggies were removed without probing the rectum. CP at 38. On the basis of these findings, the trial court determined that this constituted a strip search, not a body cavity search. CP at 38.
The ruling was correct. Removing an item protruding from the anus during a strip search is not a body cavity search, even if the protruding item is touching a body cavity. State v. Jones, 76 Wn.App. 592, 598, 887 P.2d 461 (1995). An officer does not touch or probe the rectum when retrieving an item that touches the rectum. Id.
The trial court properly determined that Mr. Davis was not the subject of a body cavity search.
He next argues that the search was conducted without statutory authorization. We disagree. A strip search is authorized following an arrest for certain named offenses, including "burglary" or "an offense involving...
To continue reading
Request your trial