State v. Fisher

• Decision Date: 06 December 2001
• Docket Number: No. 70760-0.,70760-0.
• Citation: 145 Wash.2d 209,35 P.3d 366,145 Wn.2d 209
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Carey Virginia FISHER, Petitioner.

35 P.3d 366

145 Wn.2d 209

145 Wash.2d 209

STATE of Washington, Respondent, v. Carey Virginia FISHER, Petitioner.

No. 70760-0.

Supreme Court of Washington, En Banc.

Argued October 23, 2001.

Decided December 6, 2001.

William David McCool, Walla Walla, John G. Ziegler, Waitsburg, for Petitioner.

James Lyle Nagle, Walla Walla County Prosecutor, for Respondent.

SMITH, J.

Petitioner Carey Virginia Fisher seeks review of a decision of the Court of Appeals, Division III, which upheld her conviction in the Walla Walla County Superior Court for violations of the Uniform Controlled Substances Act, chapter 69.50 RCW, and concluded that an order authorizing a bench warrant for violation of the conditions of her release pending sentencing in a prior case under Criminal Rule (CrR) 3.2(j)(1) did not require a showing of probable cause, but required only a well founded suspicion of a violation of those conditions. We granted review. We affirm in part and reverse in part.

QUESTION PRESENTED

The question presented in this case is whether CrR 3.2(j)(1), authorizing a superior court to issue a bench warrant for arrest upon a verified application alleging with specificity willful violation of a condition of release, requires a showing of probable cause for issuance of a bench warrant for a defendant previously found "guilty" and released on conditions pending sentencing.

STATEMENT OF FACTS

On September 3, 1998 Petitioner Carey Virginia Fisher was arrested in Walla Walla County for possession of methamphetamine.¹ She posted bail on September 8, 1998.² On October 23, 1998 she was arrested for delivery of a controlled substance.³ She was granted a conditional release on personal recognizance on December 23, 1998, on a $7,500 appearance bond which "may be satisfied by bail posted in XX-X-XXXXX-X" [Petitioner's earlier case].⁴ The conditions of the order, signed by the Honorable Robert L. Zagelow, were as follows:⁵

Defendant will keep in regular contact with defendant's attorney.

Travel is restricted to Walla Walla County and/or_____.

Defendant shall reside at 966 Dawson, College Place, Washington; and shall not change place of residence without court permission.

That the defendant have no personal contact with State's witnesses.

That the defendant have no violation of any criminal laws.

On January 4, 1999 Petitioner pleaded "guilty" in the Walla Walla County Superior Court to possession of methamphetamine and delivery of a controlled substance arising out of her 1998 arrests.⁶ On January 7, 1999, Gabriel E. Acosta, Deputy Prosecuting Attorney for Walla Walla County, by application and affidavit asked the court to issue a bench warrant for Petitioner's arrest for violation of conditions of her release.⁷ The application and affidavit read in its entirety:

1. I am the assigned deputy prosecuting attorney in the case of State v. Carrie Fisher, Cause Nos. 98-1-00330-5 and 98-1-00371-2.

2. CCO Alice Rogers informed me on January 7, 1999, that a client (probationer) of hers told her that she was present at the January 4, 1999, docket when defendant Fisher pled guilty in the above stated cause numbers, and overheard Ms. Fisher say that there was no way she was going to stick around for sentencing. This client also told CCO Rogers that she could tell that Ms. Fisher was high on drugs at the time of the change of plea hearing, and that she also is acquainted with Ms. Fisher. CCO Rogers stated that the client's information was unsolicited and not the reason for the contact with the client.

3. Your affiant was also informed by the grandmother of Ms. Fisher's child in the last week that she knows Ms. Fisher had been spending considerable time, since posting bail, at a known drug user's home, including spending at least one night there, and using drugs there.

4. Finally, your affiant was informed by WWPD Det. Castillo that he had been surveilling a known drug user's home here in Walla Walla, and observed Ms. Fisher present there on several occasions since being released on bail.[⁸]

The court, the Honorable Donald W. Schacht, on January 7, 1999 granted the Deputy Prosecuting Attorney's request and authorized a bench warrant for Petitioner's arrest to show cause, if any, why she did not obey the terms of her release.⁹

At trial before Judge Donald W. Schacht, Detective Castillo testified that he went to the Fisher residence to serve the bench warrant on January 7, 1999.¹⁰ He stated that, as soon as he came on the scene, a vehicle pulled up and parked in front of the residence.¹¹ He observed Petitioner and her mother alight from the vehicle.¹² As Petitioner started walking toward the mailboxes, Detective Castillo told her the Prosecutor's office needed to talk to her,¹³ but he did not place her under arrest because Officer Steve Harris, his backup, had not arrived.¹⁴ While Petitioner proceeded toward the fenced area of the residence, Officer Harris arrived. Detective Castillo then served the bench warrant and placed Petitioner under arrest.¹⁵

According to Detective Castillo's testimony, Petitioner then asked why she was going to jail and why she was under arrest.¹⁶ He told her there was a bench warrant for her arrest.¹⁷ He testified that during the arrest Petitioner attempted to hand the purse in her possession to her mother who stood about 8 to 10 feet away.¹⁸ Detective Castillo intercepted the purse and told Petitioner "the purse was going with her." He testified that Petitioner then began to resist arrest.¹⁹ She dropped the purse on the ground. When Detective Castillo reached for it, Petitioner picked it up and swung it at him several times.²⁰ He also stated that prior to his placing Petitioner in Officer Harris' patrol car, she cried out "[d]on't take the purse. I don't need any more charges. I'm already going to prison."²¹

Officer Harris took custody of the purse and transported Petitioner to the Walla Walla County Jail.²² Incident to the arrest, Officer Harris searched the purse and found two bindles containing methamphetamine in a plastic film canister, marijuana, and drug paraphernalia.²³ On January 15, 1999, in the Walla Walla County Superior Court, Petitioner was charged by amended information as follows:

Count 1; VIOLATION OF THE UNIFORM CONTROLLED SUBSTANCE ACT—POSSESSION OF METHAPHETAMINE, RCW 69.50.401(d), Class C Felony (5 years or fine of $10,000 or both);

Count 2: VIOLATION OF THE UNIFORM CONTROLLED SUBSTANCE ACT—POSSESSION LESS THAN 40 GRAMS OF MARIJUANA, RCW 69.50.401(e), Misdemeanor (90 days or fine of not more than $1,000);

Count 3: VIOLATION OF THE UNIFORM CONTROLLED SUBSTANCE ACT—POSSESSION OF DRUG PARAPHERNALIA, RCW 69.50.412(1), Misdemeanor (90 days or fine of not more than $1,000);

Count 4: ASSAULT IN THE THIRD DEGREE, RCW 9A.36.031(1)(a) and/or (g), Class C Felony (5 years or fine of $10,000 or both);

committed as follows, to-wit:

Count 1: That the said CAREY VIRGINIA FISHER, in the County of Walla Walla, State of Washington, on or about the 7th day of January, 1999, did possess a controlled substance, to-wit: Methamphetamine, a Schedule II non-narcotic;

Count 2: That the said CAREY VIRGINA FISHER, in the County of Walla Walla, State of Washington, on or about the 7th day of January, 1999, did possess a controlled substance, to-wit: less than 40 grams of Marijuana, a Schedule I non-narcotic;

Count 3; That the said CAREY VIRGINIA FISHER, in the County of Walla Walla, State of Washington, on or about the 7th day of January, 1999, did unlawfully possess drug paraphernalia, to-wit: needles, a plastic canister and bindles for containing drugs, and cotton for use as a filter;

Count 4: That the said CAREY VIRGINA FISHER, in the County of Walla Walla, State of Washington, on or about the 7th day of January, 1999, with intent to prevent or resist the lawful apprehension or detention of herself and/or while performing his official duties at the time of assault, did assault Detective Castillo, a law enforcement officer, to-wit: struck at Detective Castillo with her purse;

contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.²⁴

Petitioner testified that prior to her arrest on the bench warrant, she and her mother, Ms. Jaekel Fisher, stopped by the residence of a friend, Ms. Kelly Hall, to pick up a purse Petitioner had left there three days earlier.²⁵ Petitioner claimed that, as she left the Hall residence, Ms. Hall made a comment concerning the purse ("I have a surprise for you").²⁶ Petitioner attempted to introduce this statement to explain her reactions to the purse and police.²⁷ But the court granted the State's motion in limine to preclude the statement as hearsay.²⁸

Prior to trial, on February 23, 1999 Petitioner moved to suppress the evidence obtained at the time of her arrest and to dismiss the charges on grounds that the bench warrant was issued without probable cause.²⁹ Judge Robert L. Zagelow denied the motions, holding that cases such as State v. Lucas and State v. Simms indicate probationers and parolees, who are in somewhat similar status as Petitioner, possess only a diminished right of privacy and may be subjected to search without a warrant or probable cause.³⁰ Judge Zagelow stated that therefore, just as in Lucas, Petitioner should expect close scrutiny by the State.³¹ He further stated that the State need not prove probable cause for issuance of a bench warrant when a defendant has willfully violated conditions of release, citing CrR 3.2(j)(1).³² He indicated that the affidavit and application nevertheless must indicate a well-founded suspicion upon which a warrant could be issued.³³ He concluded the affidavit of Mr. Acosta met that standard.³⁴

In a letter dated February 26, 1999 denying Petitioner's motion to suppress evidence "gathered pursuant to an arrest warrant," Judge Robert L. Zagelow explained his conclusion that there was no requirement under CrR 3.2(j)(1) "that the warrant issue only upon probable...