State v. Lipp, 30744-1-III

• Decision Date: 06 September 2012
• Docket Number: 30744-1-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ERIC J. LIPP, Appellant.

STATE OF WASHINGTON, Respondent,
v.
ERIC J. LIPP, Appellant.

No. 30744-1-III

Court of Appeals of Washington, Division 3

September 6, 2012

UNPUBLISHED OPINION

Korsmo, C.J.

Eric J. Lipp appeals his conviction for possession of a controlled substance, raising numerous challenges. We affirm.

FACTS

Washington State Patrol (WSP) Trooper Philip Thoma stopped Mr. Lipp's truck for speeding on October 8, 2010, at approximately 7:34 a.m. on southbound Interstate 5 in Cowlitz County. Mr. Lipp's fiancée, Morgan Thompson, was a passenger. The trooper spoke to Mr. Lipp through the passenger window. Mr. Lipp was so nervous that he had trouble getting his driver's license out of his wallet. In the trooper's experience it was normal for people to be nervous during a traffic stop, but Mr. Lipp's extreme level of nervousness caused the trooper fear. The closest backup was approximately 10 to 15 minutes away.

Based on this concern, the trooper asked Mr. Lipp to step out and escorted him to the rear of his vehicle. A weapons frisk found nothing. The trooper then asked Mr. Lipp whether he had any weapons inside the vehicle. After being informed that there was a buck knife in the truck, the trooper decided to secure it for his own safety. He asked Ms. Thompson to exit and stand at the front. Trooper Thoma then entered the vehicle through the driver's door and retrieved the knife from the exact location where Mr. Lipp told him it was located. As he picked up the knife, Trooper Thoma observed underneath it a pen barrel that was melted on one end and had white residue inside.

Trooper Thoma also secured the pen and questioned Mr. Lipp about it without informing him of his Miranda^[1] rights. Mr. Lipp admitted that he used the pen barrel to snort pain pills because he wanted their effect to be faster than via oral ingestion. He also granted permission for a search of his vehicle; the search turned up nothing. A field test of the residue on the pen barrel was inconclusive. Trooper Thoma then cited Mr. Lipp for speeding and released him. The knife was returned to a place in the vehicle where any movement toward it would have been obvious to the trooper.

The WSP crime lab found cocaine residue on the pen barrel. Mr. Lipp was charged with unlawful possession of a controlled substance. At the CrR 3.5 hearing, defense counsel argued that the statements made to the trooper regarding his use of the pen were the result of custodial interrogation without the benefit of Miranda warnings. The trial court disagreed, holding that Mr. Lipp was not in custody at the time of the questioning, but rather was the subject of a Terry^[2] stop.

At trial, the State argued that Mr. Lipp had been in constructive possession of the pen barrel and that the barrel contained cocaine residue. Trooper Thoma testified that Mr. Lipp told him he had used the pen to snort pain medication. Although the defense did argue that the State had failed to demonstrate that Mr. Lipp constructively possessed cocaine, its main thrust was unwitting possession. To that end, Mr. Lipp testified that he was unaware of the pen's existence in his vehicle. Ms. Thompson testified that she had never seen the pen before, that Mr. Lipp often loaned his truck to others, and that he rarely, if ever cleaned it. A jury found him guilty of possession of a controlled substance.

At the sentencing hearing, Mr. Lipp requested a sentence of 24 hours in jail. The trial court sentenced him as a first-time offender to 10 days in jail and 24 months of community custody with treatment. Mr. Lipp then timely appealed, but he did not request a stay of the sentence.

ANALYSIS

This appeal challenges the court's decision to admit Mr. Lipp's statements to the trooper and also whether counsel was ineffective for failing to move for suppression of the pen barrel under CrR 3.6. Mr. Lipp also argues that the prosecutor engaged in misconduct and that the trial court erred by failing to stay execution of the sentence pending appeal. Each is addressed in turn.

CrR 3.5 Hearing^[3]

Mr. Lipp argues that the trial court erred in not suppressing his statements because he was subject to custodial interrogation without advice of rights. Miranda warnings were created in order to protect a defendant's constitutional right against self-incrimination. State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). They must be administered anytime a suspect is subject to custodial interrogation by a state agent. Id. Absent Miranda warnings, any statements made while in custody are presumed involuntary. Id.

Neither party disputes that Trooper Thoma was a state agent or that there was an "interrogation." Consequently, the only remaining issue is whether Mr. Lipp was in custody for Miranda purposes at the time he was questioned.

The test to determine custody is an objective one—where any reasonable person would believe that his or her freedom was curtailed to the degree normally associated with formal arrest. Heritage, 152 Wn.2d at 218; Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In Berkemer, the court concluded that routine roadside seizure and questioning did not amount to custodial interrogation. 468 U.S. at 440.

The trial court correctly determined that Mr. Lipp was not subject to custodial arrest at the time he was questioned roadside about the pen barrel.^[4] A reasonable person would not believe he was under arrest at the time. The trooper did not draw his weapon, use his handcuffs, inform Mr. Lipp that he was under arrest, become physical with him in any way, or otherwise display authority such as placing Mr. Lipp in the police cruiser.^[5] There also was nothing deceptive about the questioning which involved the evidence the trooper...