State v. Louthan

• Decision Date: 18 September 2018
• Docket Number: No. 50674-2-II,50674-2-II
• Parties: STATE OF WASHINGTON, Respondent, v. JAMES LAURENCE LOUTHAN, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. JAMES LAURENCE LOUTHAN, Appellant.

No. 50674-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

September 18, 2018

UNPUBLISHED OPINION

WORSWICK, J. — James Louthan appeals from his unlawful possession of a controlled substance conviction, contending that the trial court erred by failing to suppress evidence seized during what Louthan asserts was an illegal search of his person. Because Louthan cannot meet his burden of showing that he had been seized prior to his arrest and because substantial evidence supports the trial court's finding that Louthan had consented to a search of his person, his contention fails, and we affirm his conviction.

FACTS

On June 20, 2017, the State charged Louthan with unlawful possession of a controlled substance. Before trial, Louthan moved to suppress evidence that had been seized from his person. The trial court held a CrR 3.6 hearing to address Louthan's suppression motion, at which Lewis County Sheriff's Deputy Stephen Heller and Louthan testified.

At the suppression hearing, Deputy Heller testified that he and Trooper Torson Iverson went to a store in Doty, Washington at approximately 3:00 a.m. on June 19, 2017, in response to a report of a man wearing a camouflage jacket staring toward the reporting party's home and looking in the doors and windows of the closed store. Heller contacted Louthan outside the store as Iverson arrived. Iverson's dashboard camera recorded the officers' interaction with Louthan. The recording was played at Louthan's suppression hearing.

The video recording shows Louthan telling the officers that he got separated from a friend who was from the area and that he had not been able to contact his friend due to a lack of cellular phone service. Louthan also told the officers that he was a type 1 diabetic, did not have any insulin, and needed food. Louthan confirmed with Iverson that he had been walking down the highway. When Iverson told Louthan that the police had received a call stating that he had been walking down the center line of the highway, Louthan responded, "Yeah, right I mean I've been diabetic for thirty-five years, so my vision at night time is not worth a [expletive]." Ex. 1, at 2 min., 36 sec. through 2 min., 41 sec. Louthan also told Iverson that it was "freezing" out. Ex. 1, at 2 min., 41 sec. Iverson asked Louthan if he had a light; Louthan told Iverson that he had a light on his phone but that his phone battery was nearly dead.

Heller also testified at the suppression hearing that he ran a warrants check on Louthan while Louthan was speaking with Iverson. Heller found that Louthan had outstanding warrants but decided that he would not arrest Louthan based on those warrants. Heller further testified at the hearing that at this point in the interaction, he no longer had a suspicion that Louthan had been engaged in criminal activity and that the investigative portion of his stop had been completed. Heller stated that he continued interacting with Louthan to assist him in figuring out where to go that early in the morning.

The video exhibit shows Heller telling Louthan about the outstanding warrants and advising him to take care of the warrants. Heller then tries to call Louthan's friend, but no oneanswers. Heller asked Louthan, "So, what's the plan here man? Do you need medical attention for your diabetes because you haven't eaten anything and your blood sugar is going to be [inaudible]?" Ex. 1, at 7 min., 26 sec. through 7 min., 33 sec. Louthan stated that he was "fine right now" but "I can't stand out here in the cold, I'm freezing man." Ex. 1, at 7 min., 43 sec. through 7 min., 47 sec. Louthan stated that he would try to wake up his friend's relatives to use their phone. Heller said that was not a good idea and that it was not a good idea to hang around there. Louthan stated that he would start walking down the highway then, to which Heller responded that he didn't want him walking down the highway. Heller then told Louthan:

So what I'm going to do is I'm going to give you the option. I already know you got warrants. You got to get them taken care of, okay? I'm willing to give you a ride into Chehalis, alright? And I think you're willing. I'm willing to do that. I have to go that way anyway. But you got to listen to my [expletive] music, you got to wear a seatbelt, and I got to make sure you don't have any dope, and any weapons, or anything on you.

Ex. 1, at 8 min., 10 sec. through 8 min., 27 sec. Heller asked Louthan if his proposal sounded good, and Louthan said, "Yeah." Ex. 1, at 8 min., 31 sec. Louthan then asked Heller if he could call for another ride to come get him. Heller asked Louthan if there was someone else who could come get him. Louthan did not provide the name of another person, and Heller suggested that Louthan could try calling someone else after they arrived in Chehalis. Heller told Louthan that he was not going to confirm the warrants and that he was not taking him to jail. Iverson advised Louthan that if he was in Chehalis and his blood sugar kept going down, someone there could call for help. Heller again asked Louthan if the proposal sounded good, and Louthan again said, "Yeah." Ex. 1, at 9 min., 22 sec. Heller then searched Louthan and found a clear plastic bag containing suspected methamphetamines, which was located in a work glove in Louthan's back left pocket.

Louthan testified at the suppression hearing that his friend's sister owned the Doty store where he had been confronted by police and that his friend's mother lived next door to the store. Louthan stated that he was waiting for his friend to come find him at the store when the police officers arrived. Louthan further stated that he felt that Heller was not providing him with a real choice as to whether he could accept a ride to Chehalis because he believed Heller was not permitting him to either wake up his friend's relatives or to walk down the highway. Louthan also stated that he felt Heller had mentioned the warrants to coerce him to accept the offer of a ride to Chehalis.

The trial court denied Louthan's suppression motion and entered the following findings of fact and conclusions of law in support of its ruling:

FINDINGS OF FACT

1.1 On June 19, 2017, Deputy Stephen Heller with the Lewis County Sheriff's Office responded to a location on Stevens Road in Doty at approximately 2:57 am for a suspicious person call to 911.

1.2 The named complainant reported that there was an unknown male standing under a street light, smoking a cigarette, staring at her house.

1.3 The male was also observed by the complainant looking through the windows of a closed business he was standing next to.

1.4 Law enforcement was also informed that a male had been seen in the area walking down the middle of the road.

1.5 Upon contact with the male, Dep. Heller was assisted by Trooper Torson Iverson.

1.6 Neither law enforcement officer used or displayed any aggressive action or words towards the male during their contact.

1.7 Up to the point of Louthan's arrest, he was never in custody.

1.8 The male indicated that he was from Oakville, and was in the Doty area hiking, but had become separated from his friend.

1.9 The male also stated he had been walking down the middle of the road.

1.10 The male had attempted to call his friend but his cellphone was not working in that area and the battery was dying.

1.11 Dep. Heller obtained the phone number for the friend the male was attempting to call and called the number on his cellphone.

1.12 Nobody answered the phone call from Dep. Heller.

1.13 The male advised that he was a type 1 diabetic and had not eaten for several hours.

1.14 The male refused the summoning of medical assistance offered by Dep. Heller.

1.15. The male was verbally identified as James Louthan.

1.16 Louthan had active warrants from Grays Harbor County and Mason County, which were not confirmed and Louthan was never detained on.

1.17 When asked his plan, Louthan said that he wanted to wake up a person he knew that lived at the location where he was contacted and was told "no" by Dep. Heller.

1.18 After Louthan was told "no", he said "well, I'm going to walk down the highway," and was told "no" by Dep. Heller.

1.19 Dep. Heller offered to give Louthan a ride to Chehalis in his patrol vehicle so Louthan would have an easier time contacting someone he knew, because the temperature at the time was cold, because of Louthan's medical issues, and because of the reports of activity attributed to Louthan.

1.20 Dep. Heller advised Louthan that him remaining in the area was not a valid option.

1.21 Dep. Heller indicated through testimony that the purpose for him making this comment was due to the totality of the circumstances at the time.

1.22 Louthan had no other person to obtain a ride from other than Dep. Heller.1.23 Dep. Heller advised Louthan that he was not going to book him on the warrants or even confirm them.

1.24 Dep. Heller testified that no reasonable suspicion of criminal activity existed on the part of Louthan.

1.25 Louthan decided to accept the offer from Dep. Heller for a ride into Chehalis.

1.26 As a condition of getting a ride to Chehalis in his vehicle, Dep. Heller advised Louthan that he would have to be searched for drugs and/or weapons.

1.27 Louthan consented to the search of his person before entering the vehicle.

1.28 During this search, Dep. Heller discovered a glove in Louthan's back pants pocket that contained a plastic baggie with a white, crystalline substance.

1.29 This substance was recognized as methamphetamine by Dep. Heller through his training and experience.

1.30 Louthan was placed under arrest for possession of a controlled substance.

1.31 Dep. Heller advised Louthan of his Miranda warnings from his standard issued card immediately after placing Louthan under arrest.

1.32 After advisement, Louthan stated that he had forgotten the methamphetamine was in his pants pocket.

CONCLUSIONS OF LAW (3.6)

2.1 Under the totality of the

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