State v. Lohr

• Decision Date: 18 October 2011
• Docket Number: No. 41213–6–II.,41213–6–II.
• Citation: 164 Wash.App. 414,263 P.3d 1287
• Parties: STATE of Washington, Respondent,v.Susan Kay LOHR, Appellant.
• Court: Washington Court of Appeals

164 Wash.App. 414

263 P.3d 1287

STATE of Washington, Respondent,

v.Susan Kay LOHR, Appellant.

No. 41213–6–II.

Court of Appeals of Washington, Division 2.

Oct. 18, 2011.

Lise Ellner, Attorney at Law, Vashon, WA, for Appellant.Sara I. Beigh, Lewis County Prosecutor's Office, Chehalis, WA, for Respondent.

VAN DEREN, J.

[164 Wash.App. 416] ¶ 1 Susan Lohr appeals the trial court's denial of her motion to suppress evidence discovered in her purse during the execution of a premises search warrant at a location she was only visiting. Lohr contends that the search violated both the Fourth Amendment ¹ and article I, section 7 of the Washington State Constitution because she was not named in the search warrant ² and because the purse was readily recognizable as belonging to her. We reverse Lohr's conviction and remand to the trial court to enter an order suppressing the evidence the police seized from her purse.

FACTS

¶ 2 On December 30, 2009, a Centralia Police Department special weapons and tactics team executed a premises search warrant at a local residence. The purpose of the search warrant was to locate evidence of the crimes of delivery of marijuana and possession of marijuana with intent to deliver. Centralia Police Officer David Clary remained outside for security purposes, while other officers went inside to conduct the search. Later, Clary entered the residence and saw Lohr, who did not live at the residence, among the several individuals present; she was sitting on a couch approximately seven feet from Clary.

¶ 3 A second officer, who had been inside during the search, informed Clary that Lohr was free to leave. Lohr asked Clary for her boots and pants, which were seven to eight feet away behind Clary, and Clary gave them to her. While retrieving those items, Clary noticed a “medium size” purse sitting with her boots and pants and asked Lohr whether the purse also belonged to her. Report of Proceedings (RP) (July 21, 2010) at 14. Lohr responded that the purse was hers and that she wanted to take it with her. Prior to handing the purse to Lohr, Clary searched the purse and found Lohr's identification card and several syringes, one of which contained a substance later determined to be methamphetamine.

¶ 4 The State charged Lohr with one count of unlawful possession of a controlled substance, to wit: methamphetamine. She unsuccessfully moved to suppress the evidence that Clary seized during his search of her purse.

¶ 5 At the suppression hearing, Clary testified that the purse was “wide open” as he handed it to Lohr, and that he looked inside it to check for any means of identifying the purse's owner and to ensure that the purse did not contain weapons. RP (July 21, 2010) at 8. Clary observed several items in the purse, including an identification card and “multiple hypodermic needles.” RP (July 21, 2010) at 7. After removing the identification card from the purse and reading it, Clary determined that it bore Lohr's name and photograph. RP (July 21, 2010) at 7.

¶ 6 Clary then continued to search the purse for weapons and observed a syringe with a substance later determined to be methamphetamine. Clary did not testify at the suppression hearing that he recognized the syringes as being commonly associated with illegal drug use, but Lohr does not raise this issue on appeal.

¶ 7 Lohr testified that, when the officers arrived at the residence, she was sleeping on the couch and her boots, purse, and jeans were “right next to [her] where [she] could reach [her] hand over and grab them when [she] was laying [sic] down sleeping.” RP (July 21, 2010) at 18.

¶ 8 After a stipulated facts bench trial, the trial court found Lohr guilty as charged. She appeals.

ANALYSIS

¶ 9 Lohr contends that the trial court erred in denying her motion to suppress the evidence seized from her purse because Clary unlawfully searched her purse in violation of the Fourth Amendment of the federal constitution and article I, section 7 of our state constitution. The State contends that Clary lawfully searched the purse because it was not readily recognizable as Lohr's personal property and, thus, was a part of the premises subject to the search warrant. We agree with Lohr, reverse her conviction, and remand for suppression of the evidence taken from the purse.

I. Standards Review

¶ 10 When reviewing a trial court's denial of a suppression motion, we review its findings of fact for whether substantial evidence supports them and whether its findings support its conclusions of law. State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings of fact are verities on appeal. Hill, 123 Wash.2d at 644, 870 P.2d 313. We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wash.2d 821, 874–75, 83 P.3d 970 (2004), abrogated impart on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We review the trial court's conclusions of law de novo. Garvin, 166 Wash.2d at 249, 207 P.3d 1266.

II. Findings of Fact Unsupported by Substantial Evidence

¶ 11 Lohr assigns error to the following findings of fact:

1.16 The purse was not immediately recognizable as belonging to [Lohr].

1.17 The purse was open.... Clary looked inside to see if there was any identification to show who the purse belonged to.... Clary also wanted to ensure that the purse did not contain a weapon.

1.18 Inside the purse ... Clary saw an identification card that had [Lohr]'s picture and information. Also inside the purse were several syringes that ... Clary recognized as being commonly used for ingesting drugs.

Clerk's Papers (CP) at 24. Lohr's arguments do not address findings of fact 1.17 and 1.18.³ We do not consider assignments of error not supported by argument or reference to the record. RAP 10.3(a)(6). But Lohr's arguments generally and extensively address finding of fact 1.16, i.e., whether her purse was readily recognizable as belonging to her. We find her arguments persuasive that her purse was readily recognizable as hers and not subject to the search warrant.

¶ 12 Our decision in State v. Worth, 37 Wash.App. 889, 683 P.2d 622 (1984), is instructive about whether Lohr's purse was readily recognizable as belonging to her. In Worth, law enforcement officers obtained an arrest warrant for an individual and a warrant to search his premises and person. 37 Wash.App. at 890, 683 P.2d 622. The warrant authorized the seizure of items related to a series of pharmacy robberies, “including clothing, cosmetics, weapons, and narcotics.” Worth, 37 Wash.App. at 890, 683 P.2d 622. Worth was not identified as the subject of the search warrant. Worth, 37 Wash.App. at 890–91, 683 P.2d 622. Worth was sitting in a chair when law enforcement officers executed the warrant; a purse rested against her chair. Worth, 37 Wash.App. at 891, 683 P.2d 622. An officer searched the purse for weapons and discovered a tin canister containing white tablets. Worth, 37 Wash.App. at 891, 683 P.2d 622.

¶ 13 Another officer led Worth into a different room for questioning and took along the purse. Worth, 37 Wash.App. at 891, 683 P.2d 622. After Worth refused to consent to the officer's searching the purse, the officer emptied the purse of its contents, searched the purse's inner compartments, and discovered a “bindle of cocaine.” Worth, 37 Wash.App. at 891, 893–94, 683 P.2d 622.

¶ 14 On appeal, Worth argued that the second search of her purse was unlawful. Worth, 37 Wash.App. at 891, 683 P.2d 622. We observed, “[I]t was apparent to officers conducting the search that Worth's purse was not just another household item which police could search by virtue of their warrant to search the premises of Folkerts'[s] house. Because Worth's purse rested against the chair on which she was seated, it was clear that she owned the purse.” Worth, 37 Wash.App. at 893, 683 P.2d 622.

¶ 15 The State cites Hill to support its argument that Lohr's purse was not readily recognizable as belonging to her. In Hill, law enforcement officers executed a premises warrant that named no individuals and authorized a search of a house for “narcotics and related paraphernalia.” 123 Wash.2d at 643, 870 P.2d 313. The officers found Hill and a woman in the bedroom; they determined that the woman occupied the home, although Hill did not. Hill, 123 Wash.2d at 643, 870 P.2d 313. When another officer entered the bedroom, Hill “was standing naked at the foot of the bed, already handcuffed.” Hill, 123 Wash.2d at 643, 870 P.2d 313.; When the officer sought to take Hill into the living room, which law enforcement officers had swept for weapons and contraband, Hill asked the officer for a pair of sweatpants that were laying on the floor six feet from Hill. Hill, 123 Wash.2d at 643, 870 P.2d 313. Before giving Hill the sweatpants, the officer patted them down for weapons. Hill, 123 Wash.2d at 643, 870 P.2d 313. Then, in order to search for weapons, identification, and contraband, the officer slowly pulled the sweatpants' pockets inside-out, where he discovered small crumbs of rock cocaine. Hill, 123 Wash.2d at 643, 870 P.2d 313.

[164 Wash.App. 421] ¶ 16 In an undisputed finding of fact the trial court stated, “ ‘Although there was some evidence that the sweatpants were defendant's, it [wa]s not clear that this was obvious to the officer before he searched the pants; the pants were on the floor near the door and not obviously associated with the defendant.’ ” Hill, 123 Wash.2d at 647, 870 P.2d 313 (quoting Hill Clerk's Papers at 39–40). On appeal, Hill argued that the sweatpants were an “ ‘immediately recognizable item of personal effects.’ ” Hill, 123 Wash.2d at 647, 870 P.2d 313 (quoting Hill...