State v. Johnson

Decision Date18 January 1996
Docket NumberNo. 62890-4,62890-4
Citation128 Wn.2d 431,909 P.2d 293
CourtWashington Supreme Court
Parties, 64 USLW 2527 The STATE of Washington, Respondent, v. Dennis M. JOHNSON, Petitioner.
Hugh M. Spall, Jr., Ellensburg, for petitioner

Jeffrey C. Sullivan, Yakima County Prosecutor, Duane Knittle, Deputy, Yakima, for respondent.

SMITH, Justice.

Petitioner Dennis M. Johnson seeks review of a decision by the Court of Appeals, Division Three, affirming his conviction for possession of a controlled substance, methamphetamine, in the Yakima County Superior Court and the trial court's ruling which denied his motion to suppress evidence found in the sleeping compartment of the cab of a tractor-trailer he was driving upon an interstate highway. We granted review. We affirm.

QUESTION PRESENTED

The sole question presented in this case is whether a state trooper exceeded the lawful scope of a search incident to arrest under a bench warrant by searching the sleeping compartment in the cab of a tractor-trailer driven by a defendant upon an interstate highway and examining the contents of an open small flat leather-like litter bag clipped to the wall of the compartment.

STATEMENT OF FACTS

Just before 8:00 p.m. on December 14, 1992, Washington State Trooper John Berends observed a Peterbilt tractor-trailer rig make two lane changes without signaling on northbound Interstate 82 in Yakima County. 1 He stopped it near the Nob Hill exit, milepost 34. 2 The trooper got out of his patrol car and met the driver, Petitioner Dennis M. Johnson, who presumably alighted from the cab, between Returning to his patrol car, Trooper Berends made a driver's license check on Petitioner Johnson 5 which revealed an outstanding bench warrant from Yakima County District Court for one Dennis M. Johnson for failure to appear on a charge of driving while license suspended. Trooper Berends contacted another trooper who located the tractor-trailer which was continuing on the highway. 6 Trooper Berends and that trooper pursued the tractor-trailer Petitioner was driving and stopped it on northbound Interstate 82 about eight miles from the first stop south of the Firing Center exit near milepost 26. 7 Trooper Berends again got out of his patrol car and met Petitioner, who presumably alighted from the cab, between the tractor-trailer and the patrol car. He arrested Petitioner on the bench warrant, handcuffed him, searched him, and placed him in the patrol car. 8

                the tractor-trailer and the patrol car.  When the trooper asked for his license, Petitioner produced an apparently valid California driver's license. 3  Trooper Berends inspected the license, gave Petitioner an oral warning and allowed him to proceed without issuing a citation to him. 4  Petitioner was then employed as a driver for the owner, an Olympia-based over-the-road trucking company
                

Trooper Berends then entered the cab of the tractor-trailer through the driver's door 9 and searched the Trooper Berends found in the sleeper a "leather like, litter bag type pouch" hanging on the wall behind the driver's seat. 19 The pouch was not fastened or locked. 20 He looked in the pouch and found two small plastic bags containing a white powdery substance he believed to be cocaine, a small mirror, a razor blade, a pen holder, a film canister with marijuana, and a pipe with marijuana residue. 21 He also found a logbook in the sleeper. He seized all On December 17, 1992, the Yakima County Prosecuting Attorney initially charged Petitioner by information with possession of a controlled substance, cocaine. 23 Laboratory tests later determined the white powder was methamphetamine. 24 An amended information was then filed on July 15, 1993 charging Petitioner with possession of a controlled substance, methamphetamine. 25

                interior, including the sleeping compartment (sleeper) 10 behind the seating area of the cab. 11  He was searching for papers relating to ownership of the vehicle and for weapons. 12  The sleeper contained a bed and a clothes closet. 13  It was accessible to the cab by an open portal 14 or "a walk-through area connected by a rubber boot." 15  A curtain could be drawn across the portal to separate the driver's seating area of the cab from the sleeper. 16  At trial, Trooper Berends testified he did not remember the curtain separating the cab from the sleeper. 17  He stated "If there was [a curtain], it was drawn, pulled to one side." 18
                these items for evidence. 22
                

On July 15, 1993, Petitioner's case came before the Honorable Michael W. Leavitt in the Yakima County Superior Court in a combined CrR 3.6 suppression hearing and trial. 26 Petitioner had moved to suppress the evidence seized from the sleeper on the ground that the search of the sleeper exceeded the lawful scope of a search incident to an arrest. 27 The trial court denied the motion to suppress. 28

During trial, Petitioner's counsel offered in evidence Polaroid photographs of a Peterbilt tractor-trailer marked as exhibits for identification 7, 8, and 9. 29 Defense witness John Leonard Brooks, who repaired a Peterbilt tractor-trailer for Petitioner on December 14, 1992, identified the photographs as accurate portrayals of the tractor-trailer he repaired for Petitioner on December 14, 30 but he could not say whether the vehicle in the photographs was actually the one Petitioner was driving when he was stopped The trial court found Petitioner "guilty" of possession of a controlled substance, methamphetamine, 32 and sentenced him to 45 days. 33 The court then on August 27, 1993 entered the following "Findings of Fact and Conclusions of Law on Suppression Motion (CrR 3.6) and Defendant's Guilt": 34

                by Trooper Berends later that same day. 31  The court did not rule on admissibility of the photographs nor was the offer for admission renewed by counsel.  They are therefore not now before this court
                

UNDISPUTED FINDINGS OF FACT

I.

At the suppression hearing and trial, State presented testimony from two witnesses: Washington State Trooper John Berends, and Washington State Patrol Forensic Scientist Brad Johnston. The Defendant presented testimony from one witness: John Brooks.

II.

On December 14, 1992, shortly before 8:00 p.m., in Yakima, Washiangton [sic], State Patrol Trooper John Berends, was on routine traffic patrol, driving northbound on Interstate 82 when he saw a white Peterbuilt [sic] tractor-trailer make two lane changes (from the outside to the inside lane, then back again after passing another truck) without activating its turn signal. Trooper Berends stopped the truck at milepost 34. He saw no one in or near the truck other than the defendant who produced a California driver's license which identified him as Dennis Malcome Johnson. Trooper Berends wrote down Mr. Johnson's name and date of birth, then issued Mr. Johnson a verbal warning for the lane change infractions and told him he was free to leave.

II. [sic III.]

Returning to his patrol car, Trooper Berends decided to run a driver's license check on Mr. Johnson and relayed Mr. Johnson's name and date of birth to Washington State Patrol communications. Washington State Patrol communications responded that there existed an outstanding bench warrant from Yakima County District Court for Mr. Johnson's arrest for failure to appear on a charge of driving while license suspended.

III. [sic IV.]

Trooper Berends stopped the white Peterbuilt [sic] tractor-trailer again at milepost 26. He saw no one in or near the truck other than Mr. Johnson. Trooper Berends arrested Mr. Johnson, then handcuffed him, searched him and placed him in the back seat of a patrol car. He checked to make sure the warrant was valid. Several minutes later, while Mr. Johnson was still seated in the patrol car at the scene, Trooper Berends entered the truck cab through the driver's door to search for weapons and evidence of vehicle ownership. He did not ask Mr. Johnson whether he consented to this search.

IV. [sic V.]

The cab was connected to a sleeping unit to which Trooper Berends gained access by passing through an open portal. A curtain was in place which could be drawn across the portal, but Trooper Berends could not recall whether the curtain was open or shut. Inside the sleeping unit, Trooper Berends found a leather pouch hanging on the wall. The pouch had no latch or other means of locking it. Looking into the pouch, Trooper Berends found: (1) two small clear plastic baggies containing a white powdery substance which he believed to be cocaine; (2) a small mirror; (3) a razor blade; (4) a pipe with marijuana residue; and (5) a small tube which turned out to be a ball point pen holder. Trooper Berends seized these items. He also seized a log book.

V. [sic VI.]
Washington State Patrol Crime Lab Forensic Scientist

Brad Johnston tested the powder in the two plastic baggies. The powder in both baggies was methamphetamine.

VI. [sic VII.]

John Brooks, an employee at Western Peterbilt, located at 2028 Rudkin Road, Union Gap, Washington, repaired a white Peterbuilt [sic] tractor-trailer on December 14, 199 between 12:30 p.m. and 4:00 p.m.

DISPUTED FINDINGS OF FACT

There are no disputed findings of fact.

CONCLUSIONS OF LAW

I.

The court has jurisdiction over the person of the defendant and the subject matter of this action.

II.

Mr. Johnson was the driver of, and was alone in, the white Peterbuilt [sic] tractor-trailer both times it was stopped by Trooper Berends.

III.

Trooper Berends' first stop of Mr. Johnson was lawful because he had just seen Mr. Johnson commit two traffic infractions: changing lanes without activating his turn signal. Trooper Berends' second stop of Mr. Johnson was lawful, because he had probable cause to arrest him on the outstanding warrant from Yakima County District Court for failure to appear on a charge of driving while license suspended. Trooper Berends lawfully arrested Mr. Johnson on the outstanding warrant.

IV.

The sleeping unit was part of the...

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