State v. Elwell
| Decision Date | 03 March 2022 |
| Docket Number | 99546-0 |
| Citation | 199 Wash.2d 256,505 P.3d 101 |
| Parties | STATE of Washington, Respondent, v. Daniel Ethan ELWELL, Petitioner. |
| Court | Washington Supreme Court |
Kate Huber Washington, Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Petitioner.
Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
¶1 This case concerns the open view doctrine and the right to counsel in a criminal case. Petitioner Daniel Ethan Elwell was charged with one count of residential burglary. He disagreed with his assigned trial counsel about a number of issues, including the probable merit of a motion to suppress based on an alleged unlawful search. Elwell ultimately filed a written motion to suppress the stolen item, although counsel assisted by eliciting testimony and presenting oral argument before the court.
¶2 The trial court denied Elwell's motion to suppress, and he was convicted. The Court of Appeals affirmed, holding that Elwell's motion to suppress was properly denied on the basis of the open view doctrine and that Elwell's right to counsel had not been violated. We affirm in result.
¶3 The open view doctrine does not justify the police officer's actions in this case. Instead, we hold that the officer engaged in an unlawful, warrantless search in violation of article I, section 7 of the Washington Constitution. Therefore, it was error to deny Elwell's motion to suppress. However, the error was harmless. We further hold that Elwell was not deprived of the right to counsel. Thus, we affirm his conviction.
¶4 On the morning of March 7, 2018, the manager of a Seattle apartment complex near the University of Washington discovered that a large, arcade-style video game (, Pac-Man) was missing from the game room. Overnight surveillance footage showed a person entering at about 4 a.m. and leaving at about 5:30 a.m. with the Pac-Man machine, a cardboard box, and a wheeled dolly. The manager recognized the box and the dolly as belonging to the apartment complex. She did not recognize the person, and they did "not have permission to enter or take any items." Clerk's Papers (CP) at 5.
¶5 The apartment manager called the police, who responded at about 1 p.m. Officers spoke to the manager, watched the surveillance footage, and then went back to their duties. The officers did not have any particular suspects but thought that "the person could still be potentially in the area," so they were "keeping an eye out." Verbatim Report of Proceedings (VRP) (Oct. 31, 2018) at 193.
¶6 At about 2:20 p.m., the officers were driving near the apartment complex when they saw Elwell on the sidewalk and stopped to question him. The officers "immediately recognized" Elwell from the apartment complex's surveillance footage based on his clothing, his face, and a "large item that he was wheeling around" that "appeared to be roughly the same size" as the Pac-Man machine. Id. at 194-95. However, the object was covered by a red, opaque blanket.
¶7 One of the officers asked Elwell, "There wouldn't happen to be a Pacman machine in there; would there be?" Id. at 199. Elwell replied, "I don't think so" and "I found it in the garbage." Id. The officer told Elwell that he matched "the exact description of somebody that burglarized the building the other day and took the Pacman machine," and the officer asked Elwell to "show us what's underneath there." Id. at 199-200. Elwell stated, "Everything I get is out of the garbage" and stepped back from the object slightly. Id. at 200; Ex. 6, at 1 min., 25 sec. (officer's body cam video).
¶8 The officer reached out and "unwrapped the blanket and a plastic bag that was on top of the box" to reveal a Pac-Man machine on a dolly, which the apartment manager later identified as the stolen machine. Suppl. CP at 337. It is undisputed that Elwell "did not give his verbal consent to search." VRP (Oct. 31, 2018) at 203. Nevertheless, the officer testified he "did not feel that a warrant was required" because Elwell "exactly matched the person" from the surveillance footage and had with him "an item that's the exact same size as the one that was stolen before." Id. at 209-10.
¶9 On March 12, 2018, Elwell was charged with one count of residential burglary. His trial counsel was assigned in or around June but suffered a concussion in September. As a result, trial counsel informed the court that he was "not fit to go to trial" and requested a continuance. Status Hr'g (Sept. 17, 2018) at 3. Elwell did not object but made it clear that he would object if further continuances were requested. Trial was set for October 15.
¶10 On October 10, Elwell's counsel moved for another continuance due to his injury. Elwell objected to the delay and requested a new attorney if assigned counsel had become incapacitated. The court cautioned that a new attorney could cause yet more delays but nevertheless set a hearing on Elwell's motion to substitute counsel. The court also granted trial counsel's request for a continuance.
¶11 At the motion hearing, trial counsel explained that he and Elwell had several areas of disagreement, including the nature of the charge, Elwell's offender score, whether to bring a motion to suppress, and whether to go to trial. Elwell added that he was concerned by the delays, by his difficulty contacting counsel, and by counsel's recent concussion. The court denied the motion to substitute counsel, explaining that trial counsel's role was not to agree with Elwell but to give him legal advice. Counsel also confirmed that his health had improved and that his concussion would not hinder his effective representation of Elwell.
¶12 In his brief, trial counsel advised the court that Elwell wanted to bring a motion to suppress on the theory that by removing the blanket and ripping off the plastic wrapping that were covering the Pac-Man machine, police conducted an unlawful search. However, counsel did not think such a challenge was "viable." CP at 14. Because the facts appeared undisputed and because the same facts formed the basis of both Elwell's motion to suppress and the State's case in chief, trial counsel suggested that the court could decide the motion to suppress after the evidence was presented by the State in front of the jury. Counsel reasoned that if the motion to suppress were granted, then the jury could be instructed to disregard the relevant testimony.
¶13 The trial court granted Elwell permission to bring his motion to suppress pro se, despite trial counsel's doubts as to its merit, and agreed to decide the motion to suppress after the State presented its evidence.
¶14 In addition to the motion to suppress, trial counsel informed the court that Elwell was still interested in a new attorney and was still concerned about counsel's concussion. Counsel informed the court that he had recovered completely, and the court noted that counsel was performing to the same standard that the court had observed in prior cases. The court also reiterated that "an attorney has an independent, ethical obligation to make arguments that he or she thinks are supported by the law even if the client doesn't, you know, see eye to eye with them about that." VRP (Oct. 29, 2018) at 30. The court did not appoint new counsel.
¶15 Elwell filed his own written motion to suppress pursuant to CrR 3.6 and requested substitute counsel to represent him on the motion. As planned, the court did not consider the motion to suppress before the State began presenting its case in chief. After one of the officers testified for the State, the jury was excused so the officer could be questioned on issues relating to the motion to suppress. At Elwell's request, trial counsel asked questions on Elwell's behalf, eliciting testimony that the officer could not remember if he saw "the dolly beneath the blanket," that "Elwell never expressly gave ... permission to look under the red covering," and that the officers could have secured the object while they sought a warrant. VRP (Oct. 31, 2018) at 209-10. The jury then returned, and the State resumed its case in chief.
¶16 After the State rested, the jury was excused and the parties argued the motion to suppress. Elwell consented to trial counsel making the arguments on his behalf. Counsel contended that by covering the item and "keeping it from public view," Elwell had exerted control over the object and brought it within the scope of his right to privacy. Id. at 223. Counsel also pointed out that the officer had no warrant or consent and that there were no exigent circumstances. The State countered that both Elwell and the object with him were immediately recognizable from the surveillance footage, so Elwell had no right to privacy in the object, regardless of the plastic wrapping and the blanket covering it. The court denied the motion to suppress, ruling that "[t]here was no right to privacy in the object being rolled down the street, because its nature was so apparent." Suppl. CP at 337.
¶17 After conferring with trial counsel, Elwell decided not to testify. The jury then returned, and both sides made closing arguments. Elwell was convicted.
¶18 On November 16, trial counsel filed a motion to withdraw so that substitute counsel could file a motion for a new trial based on ineffective assistance. Elwell was assigned substitute counsel, but the motion for a new trial was denied, and the court moved on to sentencing. The State recommended a standard range sentence of 70 months, while Elwell requested a drug offender sentencing alternative (DOSA). The court imposed a 70-month sentence.
¶19 Elwell appealed, represented by new counsel. Appellate counsel raised issues concerning the right to counsel, the motion to suppress, and lesser-included offense instructions. Elwell filed a statement of additional grounds for review concerning the...
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