State v. Fenwick

• Decision Date: 18 October 2011
• Docket Number: No. 40542–3–II.,40542–3–II.
• Citation: 164 Wash.App. 392,264 P.3d 284
• Parties: STATE of Washington, Respondent,v.Thomas Melvin FENWICK, Appellant.
• Court: Washington Court of Appeals

164 Wash.App. 392

264 P.3d 284

STATE of Washington, Respondent,

v.Thomas Melvin FENWICK, Appellant.

No. 40542–3–II.

Court of Appeals of Washington, Division 2.

Oct. 18, 2011.

Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.JOHANSON, J.

[164 Wash.App. 395] ¶ 1 Thomas M. Fenwick appeals his convictions for first degree unlawful possession of a firearm and driving under the influence. He argues for the first time on appeal that under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of his car incident to his arrest was unconstitutional. He also claims that his trial counsel was ineffective for Failing to move to suppress the evidence before trial. We affirm.

FACTS

¶ 2 Around 1:00 AM on December 12, 2009, Washington State Patrol Trooper Joshua Valek was on patrol when he observed a car drifting between lanes on the roadway. Trooper Valek stopped the car and contacted the driver, who he later identified as Fenwick. Notably, a passenger was also in the car.

¶ 3 Trooper Valek explained to Fenwick the reason for the stop; Fenwick acknowledged that he was all over the roadway and added that he had not slept in five days. While talking to Fenwick, Trooper Valek observed that he appeared nervous; he was rocking back and forth and making jerky movements with his hands. Fenwick also had slurred speech and bloodshot eyes.

¶ 4 Believing Fenwick to be under the influence, Trooper Valek asked Fenwick to perform voluntary sobriety tests. Fenwick agreed to perform the tests and turned off his car, but he did not immediately exit the car. Instead he sat in his car, looking around in a nervous manner. Trooper Valek again asked Fenwick to exit his car. Rather than complying, Fenwick started his car, put it in gear, and it began to move forward slowly. At this point, Trooper Valek pulled out his taser and ordered Fenwick to stop and turn off his car; Fenwick complied. Trooper Valek called for backup and ordered Fenwick to remain in his car.

¶ 5 When backup arrived, Trooper Valek told Fenwick to exit the car and handcuffed him. After Fenwick had calmed down, Trooper Valek removed the handcuffs so that Fenwick could perform sobriety tests. Based on the sobriety tests, Trooper Valek believed that Fenwick was under the influence of a drug and arrested him for driving under the influence.

[164 Wash.App. 397] ¶ 6 Trooper Valek again handcuffed Fenwick, placed him in the back of a patrol car, and their read him Miranda ¹ warnings. Fenwick said that The understood his rights and agreed to speak to Trooper Valek. Fenwick admitted that he injects methamphetamine and that he had needles in his car.

¶ 7 Trooper Valek searched Fenwick's car incident to his arrest “for evidence of the DUI crime.” Verbatim Report of Proceedings at 69. He found drugs and a loaded Glock handgun partially underneath the driver's seat on the rear floorboard.

¶ 8 The State charged Fenwick with first degree unlawful possession of a firearm, possession of a controlled substance—methamphetamine, and driving under the influence. On March 16, 2010, the court held a CrR 3.5 hearing to determine whether statements that Fenwick made during the roadside investigation were admissible. Fenwick did not move to suppress the evidence seized from his vehicle at trial.

¶ 9 At trial, Trooper Valek testified that Fenwick's passenger was also arrested. He did not remember her charge, did not state when she was arrested, and did not otherwise indicate whether she was handcuffed during the search.

¶ 10 Trial began and concluded in March 2010. The jury found Fenwick guilty of first degree unlawful possession of a firearm and driving under the influence. Fenwick appeals.

ANALYSIS

I. Issue Preservation

¶ 11 Fenwick argues that Gant and its progeny require us to suppress the evidence obtained in the search of his car incident to his arrest. But first we must decide whether Fenwick may even raise this issue for the first time on appeal, as he failed to move at trial to suppress the evidence seized. We review issues of constitutional interpretation and issue preservation de novo. State v. Robinson, 171 Wash.2d 292, 301, 304–06, 253 P.3d 84 (2011).

A. Robinson

¶ 12 The general rule is that a party must raise an issue at trial to preserve the issue for appeal, unless the party can show the presence of a “ ‘manifest error affecting a constitutional right.’ ” Robinson, 171 Wash.2d at 304, 253 P.3d 84 (quoting State v. Kirwin, 165 Wash.2d 818, 823, 203 P.3d 1044 (2009)). The purpose of issue preservation is to “encourage ‘the efficient use of judicial resources' ... by ensuring that the trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals.” Robinson, 171 Wash.2d at 304–05, 253 P.3d 84 (quoting State v. Scott, 110 Wash.2d 682, 685, 757 P.2d 492 (1988)). But “in a narrow class of cases,” insisting on issue preservation “would be counterproductive to the goal of judicial efficiency.” Robinson, 171 Wash.2d at 305, 253 P.3d 84. Accordingly, our Supreme Court has held that issue preservation does not apply when the following four conditions are met:

(1) a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation.

Robinson, 171 Wash.2d at 305, 253 P.3d 84. The rationale underpinning this exception is that a “contrary rule would reward the criminal defendant bringing a meritless motion to suppress evidence that is clearly barred by binding precedent while punishing the criminal defendant who, in reliance on that binding precedent, declined to bring the meritless motion.” Robinson, 171 Wash.2d at 305, 253 P.3d 84.

[164 Wash.App. 399] ¶ 13 Because Fenwick cannot meet the fourth condition, the Robinson exception does not apply. Both Gant and the first Washington case interpreting Gant under our constitution, State v. Patton, 167 Wash.2d 379, 384, 219 P.3d 651 (2009), were decided in 2009. Fenwick's trial began and ended in March 2010. Because his trial was completed after Gant and Patton were decided, Fenwick does not fall within the scope of the “narrow class of cases” identified in Robinson as qualifying for an exception to the general rule of issue preservation. Robinson, 171 Wash.2d at 305, 253 P.3d 84. Fenwick can, however, still raise the issue for the first time on appeal if he can show that failing to suppress the evidence was a manifest error affecting a constitutional right. RAP 2.5(a)(3).

B. Manifest Error

¶ 14 An issue generally cannot be raised for the first time on appeal unless it is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3); State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995). But “ ‘the constitutional error exception is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify a constitutional issue not litigated below.’ ” State v. Kirkpatrick, 160 Wash.2d 873, 879, 161 P.3d 990 (2007) (quoting Scott, 110 Wash.2d at 687, 757 P.2d 492). “We adopt a strict approach because trial counsel's failure to object to the error robs the court of the opportunity to correct the error and avoid a retrial.” State v. Powell, 166 Wash.2d 73, 82, 206 P.3d 321 (2009).

¶ 15 We employ a two-part analysis to determine whether an error is a “manifest error affecting a constitutional right” under RAP 2.5(a)(3). Kirkpatrick, 160 Wash.2d at 880, 161 P.3d 990. First, we determine whether the alleged error is truly constitutional. Kirkpatrick, 160 Wash.2d at 879, 161 P.3d 990. Fenwick alleges that the State violated his right to privacy under article I, section 7, which is constitutional in nature.

[164 Wash.App. 400] ¶ 16 Second, we determine whether the alleged error is “manifest.” Kirkpatrick, 160 Wash.2d at 880, 161 P.3d 990. “ ‘Manifest in RAP 2.5(a)(3) requires a showing of actual prejudice.’ ” State v. O'Hara, 167 Wash.2d 91, 99, 217 P.3d 756 (2009) (quoting State v. Kirkman, 159 Wash.2d 918, 935, 155 P.3d 125 (2007)). To demonstrate actual prejudice, there must be a “ ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequence in the trial of the case.’ ” O'Hara, 167 Wash.2d at 99, 217 P.3d 756 (quoting Kirkman, 159 Wash.2d at 935, 155 P.3d 125). In determining whether the error was identifiable, the trial record must be sufficient to determine the merits of the claim. O'Hara, 167 Wash.2d at 99, 217 P.3d 756. “ ‘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.’ ” ² O'Hara, 167 Wash.2d at 99, 217 P.3d 756 (quoting McFarland, 127 Wash.2d at 333, 899 P.2d 1251).

¶ 17 Fenwick argues that the search was unlawful under both the Fourth Amendment of the United States Constitution and article 1, section 7 of our constitution. “When a party claims both state and federal constitutional violations, we turn first to our state constitution.” Patton, 167 Wash.2d at 385, 219 P.3d 651 (citing State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996)).

¶ 18 Article I, section 7 states: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” A valid warrant, subject to a few jealously guarded exceptions, establishes the requisite “authority of law.” State v. Afana, 169 Wash.2d 169, 177, 233 P.3d 879 (2010) (quoting Wash. Const. art. I, § 7). One such exception is a search incident to arrest. Recently, this exception has come under much scrutiny, first with Gant, and then with a series of opinions from our Supreme Court.

¶ 19 In Gant, the United States Supreme Court observed that the search incident to arrest exception had come to...