State v. Louthan

• Decision Date: 30 November 2010
• Docket Number: No. 38472-8-II.,38472-8-II.
• Citation: 158 Wash.App. 732,242 P.3d 954
• Parties: STATE of Washington, Respondent, v. Darrin L. LOUTHAN, Appellant.
• Court: Washington Court of Appeals

242 P.3d 954

158 Wash.App. 732

STATE of Washington, Respondent,

v.Darrin L. LOUTHAN, Appellant.

No. 38472-8-II.

Court of Appeals of Washington,

Division 2.

Nov. 30, 2010.

Susan F. Wilk, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.

Edgar M. Korzeniowski, Grays Harbor Prosecuting Attorneys Office, Montesano, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 At a bench trial on stipulated facts, the trial court found Darrin L. Louthan guilty of unlawful possession of methamphetamine, contrary to RCW 69.50.4013(1). Louthan appeals his conviction, asserting that the arresting officer lacked probable cause to arrest him for possession of drug paraphernalia and, thus, the trial court erred when it denied his motion to suppress the evidence seized incident to his arrest. In this appeal, we also address the applicability of the rules announced in Arizona v. Gant, ---U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), and State v. Patton, 167 Wash.2d 379, 219 P.3d 651 (2009), to the search of Louthan's vehicle incident to his arrest. Because police had probable cause to arrest Louthan for driving while under the influence of a controlled substance, contrary to former RCW 46.61.502 (2006), and because Louthan failed to preserve an objection to the scope of the officer's search of his vehicle incident to his arrest by not objecting on these specific grounds below, we affirm.

FACTS

¶ 2 Due to high flooding and water over roadways in December 2007, the Washington State Department of Transportation closed a portion of Highway 107 in Grays Harbor County, setting up barricades, cones, and road blocks. While monitoring the closure, Montesano Police Officer Dwayne Hayden stopped a vehicle that had entered the closed segment of the highway. When Hayden contacted the driver of the vehicle, later identified as Louthan, Hayden suspected that he was under the influence of a controlled substance. Hayden did not detect the odor of alcohol on Louthan's breath, but he noticed that Louthan's pupils did not expand or contract when he shined a light on them. And when Hayden asked for Louthan's proof of insurance, he gave the officer a copy of his 2006 tax return, insisting that it was his proof of insurance.

¶ 3 While standing outside the car, Officer Hayden saw what he believed to be drug paraphernalia behindLouthan's seat. The item was made out of an orange juice container with a tube secured by electrical tape protruding through the side of it. Based on his training and experience, Hayden recognized this as drug paraphernalia used to ingest drugs. Hayden instructed Louthan to exit the vehicle, arrested him, and read him Miranda¹ warnings.

¶ 4 Officer Hayden then searched Louthan's vehicle. Hayden saw a black tar residue on the orange juice container that he recovered from behind Louthan's seat. The search also resulted in the seizure of the following items: three bindles containing a white powdery substance, a blade with black tar residue on it, two glass pipes, and a digital scale. Hayden conducted field tests on the substances; the white powdery substance contained methamphetamine and the black tar substance contained an opiate. Kimberly Hefton, a forensic scientist with the Washington State Patrol Crime Lab, later confirmed Hayden's field test results andidentified the opiate in the black tar residue as heroin.

¶ 5 The State charged Louthan with unlawful possession of methamphetamine. Louthan moved to suppress the evidence obtained during the search incident to his arrest, contending that his arrest was unlawful. Specifically, Louthan asserted that the municipal code on which Officer Hayden based his arrest, Montesano Municipal Code 8.22.040 (unlawful possession of drug paraphernalia), conflicted with RCW 69.50.412(1), rendering the municipal code unconstitutional and his arrest invalid. The trial court denied Louthan's motion to suppress, reasoning that Hayden had probable cause to arrest him under RCW 69.50.412 (unlawful use of drug paraphernalia) and, thus, the evidence was seized during a search incident to a lawful arrest. At a bench trial on stipulated facts, the trial court found Louthan guilty of unlawful possession of methamphetamine; it sentenced him to 60 days confinement with 30 of those days converted into 240 hours of community restitution.

¶ 6 Louthan appealed his conviction on the grounds that his arrest was unlawful and that the trial court erred when it refused to suppress the evidence seized incident to his arrest. On December 4, 2009, we ordered the parties to submit supplemental briefing addressing Gant, Patton, and State v. Winterstein, 167 Wash.2d 620, 220 P.3d 1226 (2009). In this opinion, we address the legality of Louthan's arrest and the subsequent search of his vehicle.

ANALYSIS

Validity of Louthan's Arrest

¶ 7 Louthan first contends that Officer Hayden unlawfully arrested him for possessing drug paraphernalia, asserting that, although the Montesano local ordinance criminalized this conduct, the Uniform Controlled Substances Act, ch. 69.50 RCW, as adopted in Washington, does not permit an arrest for mere possession of drug paraphernalia. Louthan specifically contends that his arrest was unlawful because the local ordinance criminalizing mere possession of drug paraphernalia conflicts with State law and is, thus, unconstitutional and cannot form the basis for a valid arrest. But Louthan overlooks the fact that police had probable cause to arrest him for driving while under the influence of a controlled substance, in violation of former RCW 46.61.502. Accordingly, his arrest was lawful and we need not reach his statutory constitutional claims. See, e.g., State v. Huff, 64 Wash.App. 641, 646-48, 826 P.2d 698 (arrest supported by probable cause not made unlawful by officer's reliance on offense different from one for which probable cause exists), review denied, 119 Wash.2d 1007, 833 P.2d 387 (1992); see also State v. Stebbins, 47 Wash.App. 482, 735 P.2d 1353 (where police arrested suspect for armed robbery, for which there was no probable cause, arrest held lawful because probable cause existed to arrest for crime of burglary), review denied, 108 Wash.2d 1026, 1987 WL 503371 (1987).

¶ 8 We review a trial court's denial of a motion to suppress to determine whether substantial evidence supportsthe factual findings and, if so, whether the findings support the conclusions of law. State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). Louthan does not challenge the trial court's factual findings and they are verities on appeal. State v. Acrey, 148 Wash.2d 738, 745, 64 P.3d 594 (2003). We, thus, limit our review to whether the trial court's findings support its legal conclusions that Officer Hayden had probable cause to arrest Louthan (for his suspected driving while under the influence of a controlled substance) and whether the evidence obtained in the search of Louthan's vehicle was admissible at trial. We review a trial court's conclusions of law pertaining to evidence suppression motions de novo. Acrey, 148 Wash.2d at 745, 64 P.3d 594.

¶ 9 Absent an exception to the warrant requirement, we presume that a warrantless search is unconstitutional under the Fourth Amendment to the United States Constitution and article 1, section 7 of our state constitution. State v. Gaines, 154 Wash.2d 711, 716, 116 P.3d 993 (2005). One exception to the warrant requirement allows for a warrantless search incident to a lawful arrest.State v. Vrieling, 144 Wash.2d 489, 492, 28 P.3d 762 (2001). In order for the search incident to lawful arrest warrant exception to apply, the arrest preceding the search must be lawful. See State v. O'Neill, 148 Wash.2d 564, 587, 62 P.3d 489 (2003) ( "[A] lawful, actual custodial arrest is a 'constitutionally required prerequisite to any search incident to arrest.' " (quoting State v. Parker, 139 Wash.2d 486, 496, 987 P.2d 73 (1999))).

¶ 10 A lawful custodial arrest requires the officer to have probable cause to believe that a person committed a crime. State v. Gaddy, 152 Wash.2d 64, 70, 93 P.3d 872 (2004); State v. McKenna, 91 Wash.App. 554, 560, 958 P.2d 1017 (1998). Probable cause "boils down, in criminal situations, to a simple determination of whether the relevant official, police or judicial, could reasonably believe that the person to be arrested has committed a crime." State v. Klinker, 85 Wash.2d 509, 521, 537 P.2d 268 (1975) (emphasis added). Probable cause is not knowledge of evidence sufficient to establish guilt beyond a reasonable doubt but, rather, is"reasonable grounds for suspicion coupled with evidence of circumstances to convince a cautious or disinterested person that the accused is guilty." State v. Bellows, 72 Wash.2d 264, 266, 432 P.2d 654 (1967). We determine whether an arresting officer's belief was reasonable after considering all the facts within the officer's knowledge at the time of the arrest as well as the officer's special expertise and experience. State v. Fricks, 91 Wash.2d 391, 398, 588 P.2d 1328 (1979).

¶ 11 An arrest not supported by probable cause is not made lawful by an officer's subjective belief that the suspect has committed a crime. Huff, 64 Wash.App. at 645, 826 P.2d 698. And conversely, "an arrest supported by probable cause is not made unlawful by an officer's subjective reliance on, or verbal announcement of, an offense different from the one for which probable cause exist[ed at the time of the arrest]." Huff, 64 Wash.App. at 646, 826 P.2d 698. " 'The law cannot expect a patrolman, unschooled in the technicalities of criminal and constitutional law ... to always be able to immediately state with particularity the exact grounds on which he is exercising his authority.' " Huff, 64 Wash.App. at 646, 826 P.2d 698 (quoting McNeely v. United States, 353 F.2d 913, 918 (8th Cir.1965)).

¶ 12 Louthan asserts that probable cause cannot be supported by an offense different from the offense that an officer relied on when making his arrest....