State v. Howard, No. 32416-4-II (WA 4/4/2006)

Decision Date04 April 2006
Docket NumberNo. 32416-4-II,32416-4-II
PartiesSTATE OF WASHINGTON, Respondent, v. JOSHUA OSHY HOWARD, Appellant.
CourtWashington Supreme Court

Appeal from Superior Court of Thurston County. Docket No: 04-1-00995-6. Judgment or order under review. Date filed: 09/15/2004. Judge signing: Hon. Richard D Hicks.

Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.

Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.

Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6001.

HOUGHTON, J.

Joshua Howard appeals his convictions of unlawful methamphetamine possession and first degree escape. He argues that the following errors require reversal of his convictions: (1) failure to suppress evidence, (2) defective information, (3) instructional error, and (4) ineffective assistance of counsel. We agree with Howard that the trial court erred in denying his motion to suppress evidence resulting from an unlawful seizure. Thus, we reverse his conviction for unlawful methamphetamine possession. But his other arguments fail, and we affirm his first degree escape conviction.

FACTS

At about 1 a.m. on May 23, 2004, Yelm Police Officer Mitchell King stopped a car with a defective muffler. King saw a female passenger in the front seat. The back seat appeared unoccupied, though it was full of clothing. After determining that the driver had a suspended license, King arrested him, called for backup, and returned to his car to process the arrest.

Officer Rick Barnard arrived to assist. He noticed that, in addition to the female passenger, there was a male passenger in the back seat.1 Barnard asked both passengers for their identification, later saying that he needed to determine whether either could lawfully drive the car away. Barnard did not tell the passengers the purpose of his request. Both passengers said they did not have a driver's license, but the female passenger produced her Washington identification card. Barnard asked the male passenger, `Would you verbally identify yourself?' Report of Proceedings (RP) (August 2, 2004) at 31. The passenger replied, `Yes, my name is Mike Miller.' RP (August 2, 2004) at 31.

Barnard conducted a radio check and found no outstanding warrants for the female passenger. He also found no record matching the name and birth date provided by the male passenger. The officer questioned the male passenger further about his identity. He became suspicious because the passenger appeared evasive and hesitant to provide information.

During a later suppression hearing, the officer testified that, in his experience, when people refuse to accurately identify themselves, `{i}t's because they're leery about being arrested for their warrants and they don't provide accurate information.' RP (August 2, 2004) at 34.

The female passenger asked if she was free to go and the officer released her. But the officer asked the male passenger to step out of the vehicle and then continued to question him about his name, date of birth, and social security number.

King returned to the car while Barnard was questioning the male passenger. King immediately recognized the passenger as Howard. He asked Howard to remove his hands from his pockets. When Howard did so, King saw a silver knife and a glass bottle with a suspicious-looking white powder that later field tested positive as methamphetamine. The officer ran a warrant check and discovered that Howard had an outstanding arrest warrant for escape. The warrant related to Howard's failure to return to the Thurston County jail from a work release program about five weeks earlier. The officers arrested Howard. During a search incident to arrest, the officers also discovered drug paraphernalia and methamphetamine in Howard's backpack.

In an amended information, the State charged Howard with unlawful methamphetamine possession and first degree escape. Regarding the escape charge, the State alleged that Howard `on or about the 17th day of April, 2004, while being detained pursuant to a felony conviction escaped from a detention facility' in violation of RCW 9A.76.110(1). Clerk's Papers (CP) at 5. Howard did not challenge the validity of the information at trial.

Howard moved to suppress the evidence obtained during the traffic stop. At the suppression hearing, the trial court found that the only crime the officer was concerned with when he requested Howard's identification was the driver's criminal offense of driving with a suspended license. The State argued that the officer's desire to find a properly licensed driver provided an independent basis for requesting identification. But the trial court rejected that argument because the officer did not tell the passengers the basis of his request and ran a warrant check even after learning that neither had a valid driver's license.

Because the officer lacked a valid independent basis for requesting identification, the trial court concluded that the officer unlawfully seized Howard when he asked for his name and date of birth. But the court concluded:

When Howard was asked to give his name, he chose to give false information. Officer King immediately recognized Mr. Howard from a previous arrest and believed the information to be false. An individual always retains the right to remain silent but must give accurate information if he chooses to respond to the inquiry. Mr. Howard's actions gave cause for the officers to further investigate the defendant's identity. This further investigation led the officers to check the defendant's name through the criminal justice databases and directly lead {sic} to the discovery of the escape warrant. The subsequent seizure and search were justified based on the continuing investigation of the defendant's criminal activity. For these reasons, the Defendant's Motion to Suppress is denied.

Clerk's Papers (CP) at 127.

At trial, the court instructed the jury that `{a} person commits the crime of escape in the first degree when he knowingly escapes from custody or a detention facility while being detained pursuant to a conviction for a felony offense.' CP at 80.

The court also instructed that, to convict Howard of first degree escape, the State must prove beyond a reasonable doubt `{t}hat on or about the 17th day of April, 2004, the defendant escaped from custody or a detention facility.' CP at 103. Defense counsel did not object to either instruction. The jury found Howard guilty as charged and he appeals.

ANALYSIS

Suppression Motion

Unlawful Methamphetamine Possession conviction

Howard first challenges the trial court's denial of his suppression motion. He argues that the trial court erred by concluding that, even though the officer unlawfully seized him by questioning him about his identity, the false information Howard gave in response created an articulable suspicion justifying the subsequent investigation and arrest. He contends that all evidence obtained as a result of the unlawful seizure must be suppressed.

The State concedes that the officer unlawfully seized Howard by asking for his identification. But the State argues that evidence discovered thereafter is admissible under either the independent source rule or the rule of inevitable discovery.

We review findings of fact on a motion to suppress for substantial evidence. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Mendez, 137 Wn.2d at 214. We review de novo conclusions of law entered after a suppression hearing. Mendez, 137 Wn.2d at 214.

Article I, section 7 of the Washington Constitution provides that `{n}o person shall be disturbed in his private affairs, or his home invaded, without authority of law.' This provision prohibits law enforcement officers from requesting identification from passengers for investigative purposes unless there is an independent basis that justifies the request. State v. Rankin, 151 Wn.2d 689, 699, 92 P.3d 202 (2004). `An `independent basis' is an `articulable suspicion of criminal activity." State v. Brown, 154 Wn.2d 787, 796, 117 P.3d 336 (2005) (citing Rankin, 151 Wn.2d at 699). A mere request for identification from a passenger for investigatory purposes constitutes a seizure. Rankin, 151 Wn.2d at 697. Requesting identification in order to run a warrant and record check is an `investigative purpose' that runs afoul of the prohibition. Brown, 154 Wn.2d at 798. Evidence obtained in violation of article I, section 7 must be suppressed. Rankin, 151 Wn.3d at 699.

Rankin and Brown control this issue. The Rankin decision addressed the consolidated appeals of James Rankin and Kevin Staab. Both Rankin and Staab were passengers in vehicles lawfully stopped by police officers for traffic infractions. Police officers asked both men for identification. Rankin provided identification, which the officer used to find an outstanding warrant. During a search incident to arrest on the warrant, the officer discovered methamphetamine. While Staab reached into his shirt pocket to produce his identification, a baggie containing a white chalky substance fell out. The officer discovered no warrant but arrested Staab based on his belief the baggie contained methamphetamine.

The trial court granted Rankin's motion to suppress, ruling that the officer illegally seized him by requesting his identification without an articulable suspicion of wrongdoing. The trial court denied Staab's motion to suppress, concluding the opposite.

On review, our Supreme Court held that an unlawful seizure occurred in both instances. The Court relied on State v. Larson, 93 Wn.2d 638, 611 P.2d 711 (1980) (holding that officers unlawfully seized a passenger by requesting her identification without reasonable suspicion of wrongdoing). Rank...

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