State v. Lakotiy, 62157-2-I.

• Decision Date: 24 August 2009
• Docket Number: No. 62157-2-I.,62157-2-I.
• Citation: 151 Wn. App. 699,214 P.3d 181
• Parties: STATE of Washington, Respondent, v. Sergey Lyubomir LAKOTIY, Appellant.
• Court: Washington Court of Appeals

214 P.3d 181

151 Wn. App. 699

STATE of Washington, Respondent, v. Sergey Lyubomir LAKOTIY, Appellant.

No. 62157-2-I.

Court of Appeals of Washington, Division 1.

August 24, 2009.

Dennis John McCurdy, Daniel Kalish, King County Prosecutor's Office, Seattle, WA, for Respondent.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

LAU, J.

¶ 1 Sergey Lakotiy challenges his conviction for possession of a stolen vehicle. He argues the trial court erred in denying his motion to suppress evidence obtained following a warrantless entry into a gated commercial storage facility common area. He also asserts the evidence is insufficient to support his conviction. The State concedes that the trial court denied the motion on an improper basis, but argues that this court may affirm on three alternative grounds: (1) the police officers' entry did not implicate Lakotiy's constitutional right to privacy, (2) the police officers had actual authority to enter, and (3) Lakotiy lacked standing to challenge the warrantless entry. Because the state and federal constitutions afford no privacy protection to the common area of a gated commercial storage facility, the trial court properly denied the suppression motion. And because sufficient evidence supports the conviction, we affirm.

FACTS

¶ 2 The facts are undisputed. On the evening of November 27, 2007, Federal Way Police Officers Chris Walker and Kurt Schwan responded to a 911 call reporting suspicious activity at a multi-unit commercial storage facility. The storage facility was secured by a locked gate with a keypad on both the inside and the outside. When they arrived, Officer Schwan telephoned the storage facility manager to inform her about the 911 call and ask for an access code. The manager told Officer Schwan that she would come to the facility and allow them in.

¶ 3 Meanwhile, the officers waited outside the locked gate for the manager to arrive. After five or ten minutes, an unknown individual arrived at the facility, entered an access code, and opened the gate. Officer Walker asked the individual to return to the gate if he saw anything suspicious inside the storage facility. A few moments later, the individual returned and told the officers that he saw something suspicious involving a white van and a white car parked in the southwest corner of the facility. He then opened the gate for the officers by entering his access code. The officers drove their patrol car through the open gate and into the common area of the storage facility.

¶ 4 After parking their car, the officers walked towards the southwest corner of the facility, where they saw a white Acura and a white Ford van. They noticed light coming from the partially open sliding door of a nearby storage unit. The door was raised about 12 to 18 inches off the ground. And the officers heard the sound of tools coming from the inside of the storage unit. Officer Schwan also saw an individual inside the storage unit who was wearing blue jeans and loafers. As the officers walked toward the storage unit, the door slowly opened. The officers then announced their presence and asked the storage unit occupants to talk to them.

¶ 5 In response, an individual later identified as Lakotiy opened the door with his left hand while holding a silver-colored metal object cupped in his right hand. He quickly reached back and placed the object on the trunk of a green Acura parked inside the storage unit. When the door was completely open, the officers saw another individual, later identified as Bogdan Fedas, leaning under the hood of the green Acura.¹ The Acura's ignition, seats, and cushions were missing, and car parts, seats, and cushions lay on the ground next to it. When they looked to see what Lakotiy had placed on the trunk, they saw a car ignition and a large set of keys, which they recognized as "jiggler keys" commonly used to steal cars.²

¶ 6 The officers detained Lakotiy and Fedas while running a record check on the vehicles. They determined that the green Acura parked inside the storage unit and the white Acura parked outside the unit were stolen. And the white van parked outside the unit belonged to Fedas. The officers arrested Lakotiy and Fedas and sought a warrant to search the storage unit. Meanwhile, the storage facility manager arrived and gave Officer Schwan a law enforcement access code permitting entry to the gated storage facility common area at any time.

¶ 7 The State charged Lakotiy, who was 17 years old at the time of the incident, in juvenile court with one count of possession of a stolen vehicle.³ Before trial, Lakotiy moved to suppress the evidence obtained from the warrantless search of the storage facility common area, arguing that the officers violated his constitutional rights by entering the common area without valid consent. The trial court concluded, "The warrantless search was lawful because the officer[]s reasonably relied on the 911 call and the unknown person's apparent authority to consent." Following a bench trial the court found Lakotiy guilty as charged. Lakotiy appealed.

ANALYSIS

Warrantless Entry

¶ 8 Lakotiy argues that the trial court erred in denying his motion to suppress evidence obtained without lawful authority. When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). Conclusions of law are reviewed de novo. State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002).

¶ 9 Specifically, Lakotiy contends the trial court erred in concluding that the warrantless search of the storage facility common area was lawfully based on the 911 call and the unknown individual's apparent authority to consent to the search. The State properly concedes that the trial court erred in basing its decision on apparent authority. State v. Morse, 156 Wash.2d 1, 12, 123 P.3d 832 (2005) (holding that consent based on apparent authority is not an exception to the warrant requirement under article I, section 7 of the Washington State Constitution). But the State argues that three alternative grounds support the trial court's denial of Lakotiy's suppression motion: (1) the officers' entry into the common area did not implicate Lakotiy's constitutional rights, (2) the officers had actual authority to enter, and (3) Lakotiy lacked automatic standing to challenge the warrantless entry.

¶ 10 RAP 2.5(a) provides, "A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground." We may affirm the trial court on an alternative theory, even if not relied on below, if it is established by the pleadings and supported by proof. State v. Flowers, 57 Wash.App. 636, 640-41, 789 P.2d 333 (1990) (probable cause to arrest plus exigent circumstances supported warrantless entry); State v. Sondergaard, 86 Wash.App. 656, 657-58, 938 P.2d 351 (1997) ("we may affirm a trial court's decision on a different ground if the record is sufficiently developed to consider the ground fairly"). We conclude that the record is sufficiently developed to consider the State's alternative grounds for affirming the trial court.⁴

¶ 11 First, the State argues that the police officers' entry into the common area of the gated storage complex did not implicate Lakotiy's state or federal constitutional right to privacy. "When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first." State v. Puapuaga, 164 Wash.2d 515, 521, 192 P.3d 360 (2008). "It is by now axiomatic that article I, section 7 provides greater protection to an individual's right of privacy than that guaranteed by the Fourth Amendment." State v. Parker, 139 Wash.2d 486, 493, 987 P.2d 73 (1999). "Accordingly, a Gunwall⁵ analysis is unnecessary to establish that this court should undertake an independent state constitutional analysis." State v. Surge, 160 Wash.2d 65, 71, 156 P.3d 208 (2007) (footnotes omitted).

¶ 12 Article I, Section 7. Article I, section 7 of Washington's constitution provides, "No person shall be disturbed in his private affairs, ... without authority of law." "The interpretation of article, I, section 7 involves a two-part analysis." State v. Miles, 160 Wash.2d 236, 243, 156 P.3d 864 (2007).

The first step requires us to determine whether the action complained of constitutes a disturbance of one's private affairs. If there is no private affair being disturbed, the analysis ends and there is no article I, section 7 violation. If, however, a private affair has been disturbed, the second step is to determine whether authority of law justifies the intrusion.

Puapuaga, 164 Wash.2d at 522, 192 P.3d 360.

¶ 13 The "private affairs" analysis "focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984). "Private affairs are not determined according to a person's subjective expectation of privacy because looking at subjective expectations will not identify privacy rights that citizens have held or privacy rights that they are entitled to hold." Surge, 160 Wash.2d at 72, 156 P.3d 208. The analysis begins with an examination of what kind of protection has historically been extended to the asserted interest. State v. McKinney, 148 Wash.2d 20, 27, 60 P.3d 46 (2002). Next, we determine "whether the expectation of privacy is one that citizens should be entitled to hold." Andersen v. King County, 158 Wash.2d 1, 44, 138 P.3d 963 (2006).

¶ 14 Here, the private affairs inquiry focuses on Lakotiy's asserted privacy interest in the common area of a gated commercial storage facility, not the storage unit itself.⁶ There are no...